exv4w1






EXHIBIT 4.1




EXECUTION VERSION




 





JDA SOFTWARE GROUP, INC.




Company




JDA SOFTWARE, INC.

JDA WORLDWIDE, INC.

MANUGISTICS GROUP, INC.

MANUGISTICS, INC.

MANUGISTICS HOLDINGS DELAWARE II, INC.




initial Guarantors




8.0% SENIOR NOTES DUE 2014

 






INDENTURE




Dated as of December 10, 2009




 






U.S. BANK NATIONAL ASSOCIATION




Trustee




 





 









 








CROSS-REFERENCE TABLE*




	 	 	 	 	 	 	 
	Trust Indenture	 	 	 	 
	Act Section	 	 	 	Indenture Section
	310(a)
	 	(1)	 	 	 	7.10
	(a)
	 	(2)	 	 	 	7.10
	(a)
	 	(3)	 	 	 	N.A.
	(a)
	 	(4)	 	 	 	N.A.
	(a)
	 	(5)	 	 	 	7.10
	(b)
	 	 	 	 	 	7.10
	(c)
	 	 	 	 	 	N.A.
	311(a)
	 	 	 	 	 	7.11
	(b)
	 	 	 	 	 	7.11
	(c)
	 	 	 	 	 	N.A.
	312(a)
	 	 	 	 	 	2.05
	(b)
	 	 	 	 	 	12.03
	(c)
	 	 	 	 	 	12.03
	313(a)
	 	 	 	 	 	7.06
	(b)
	 	(2)	 	 	 	7.06; 7.07
	(c)
	 	 	 	 	 	7.06; 12.02
	(d)
	 	 	 	 	 	7.06
	314(a)
	 	 	 	 	 	4.03;12.02; 12.05
	(c)
	 	(1)	 	 	 	12.04
	(c)
	 	(2)	 	 	 	12.04
	(c)
	 	(3)	 	 	 	N.A.
	(e)
	 	 	 	 	 	12.05
	(f)
	 	 	 	 	 	N.A.
	315(a)
	 	 	 	 	 	7.01
	(b)
	 	 	 	 	 	7.05; 12.02
	(c)
	 	 	 	 	 	7.01
	(d)
	 	 	 	 	 	7.01
	(e)
	 	 	 	 	 	6.11
	316(a)
	 	(last sentence)	 	 	 	2.09
	(a)
	 	(1)(A)	 	 	 	6.05
	(a)
	 	(1)(B)	 	 	 	6.04
	(a)
	 	(2)	 	 	 	N.A.
	(b)
	 	 	 	 	 	6.07
	(c)
	 	 	 	 	 	2.12
	317(a)
	 	(1)	 	 	 	6.08
	(a)
	 	(2)	 	 	 	6.09
	(b)
	 	 	 	 	 	2.04
	318(a)
	 	 	 	 	 	12.01
	(b)
	 	 	 	 	 	N.A.
	(c)
	 	 	 	 	 	12.01








 




N.A. means not applicable.




*     This Cross Reference Table is not part of the Indenture.





 











 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE 1

	DEFINITIONS AND INCORPORATION 

	BY REFERENCE

	 
	 	 	 	 	 	 
	Section 1.01
	 	Definitions	 	 	1	 
	Section 1.02
	 	Other Definitions	 	 	22	 
	Section 1.03
	 	Incorporation by Reference of Trust Indenture Act	 	 	23	 
	Section 1.04
	 	Rules of Construction	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE 2

	THE NOTES

	 
	 	 	 	 	 	 
	Section 2.01
	 	Form and Dating	 	 	24	 
	Section 2.02
	 	Execution and Authentication	 	 	24	 
	Section 2.03
	 	Registrar and Paying Agent	 	 	25	 
	Section 2.04
	 	Paying Agent to Hold Money in Trust	 	 	25	 
	Section 2.05
	 	Holder Lists	 	 	25	 
	Section 2.06
	 	Transfer and Exchange	 	 	25	 
	Section 2.07
	 	Replacement Notes	 	 	37	 
	Section 2.08
	 	Outstanding Notes	 	 	37	 
	Section 2.09
	 	Treasury Notes	 	 	37	 
	Section 2.10
	 	Temporary Notes	 	 	37	 
	Section 2.11
	 	Cancellation	 	 	38	 
	Section 2.12
	 	Defaulted Interest	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE 3

	REDEMPTION AND PREPAYMENT

	 
	 	 	 	 	 	 
	Section 3.01
	 	Notices to Trustee	 	 	38	 
	Section 3.02
	 	Selection of Notes to Be Redeemed	 	 	38	 
	Section 3.03
	 	Notice of Redemption	 	 	39	 
	Section 3.04
	 	Effect of Notice of Redemption	 	 	40	 
	Section 3.05
	 	Deposit of Redemption or Purchase Price	 	 	40	 
	Section 3.06
	 	Notes Redeemed or Purchased in Part	 	 	40	 
	Section 3.07
	 	Optional Redemption	 	 	40	 
	Section 3.08
	 	Escrow of Proceeds; Special Mandatory Redemption	 	 	41	 
	Section 3.09
	 	Offer to Purchase by Application of Excess Proceeds	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE 4

	COVENANTS

	 
	 	 	 	 	 	 
	Section 4.01
	 	Payment of Notes	 	 	43	 
	Section 4.02
	 	Maintenance of Office or Agency	 	 	43	 
	Section 4.03
	 	Reports	 	 	44	 
	Section 4.04
	 	Compliance Certificate	 	 	45	 
	Section 4.05
	 	Taxes	 	 	45	 
	Section 4.06
	 	Stay, Extension and Usury Laws	 	 	45	 
	Section 4.07
	 	Restricted Payments	 	 	45	 
	Section 4.08
	 	Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	 	 	48	 
	Section 4.09
	 	Incurrence of Indebtedness and Issuance of Preferred Stock	 	 	50	 
	Section 4.10
	 	Asset Sales	 	 	53	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 4.11
	 	Transactions with Affiliates	 	 	55	 
	Section 4.12
	 	Liens	 	 	57	 
	Section 4.13
	 	Business Activities	 	 	57	 
	Section 4.14
	 	Corporate Existence	 	 	57	 
	Section 4.15
	 	Offer to Repurchase Upon Change of Control	 	 	57	 
	Section 4.16
	 	Additional Note Guarantees	 	 	59	 
	Section 4.17
	 	Designation of Restricted and Unrestricted Subsidiaries	 	 	59	 
	Section 4.18
	 	Changes in Covenants When Notes Rated Investment Grade	 	 	59	 
	 
	 	 	 	 	 	 
	ARTICLE 5

	SUCCESSORS

	 
	 	 	 	 	 	 
	Section 5.01
	 	Merger, Consolidation or Sale of Assets	 	 	60	 
	Section 5.02
	 	Successor Corporation Substituted	 	 	61	 
	 
	 	 	 	 	 	 
	ARTICLE 6 

	DEFAULTS AND REMEDIES

	Section 6.01
	 	Events of Default	 	 	62	 
	Section 6.02
	 	Acceleration	 	 	64	 
	Section 6.03
	 	Other Remedies	 	 	64	 
	Section 6.04
	 	Waiver of Past Defaults	 	 	64	 
	Section 6.05
	 	Control by Majority	 	 	65	 
	Section 6.06
	 	Limitation on Suits	 	 	65	 
	Section 6.07
	 	Rights of Holders of Notes to Receive Payment	 	 	65	 
	Section 6.08
	 	Collection Suit by Trustee	 	 	65	 
	Section 6.09
	 	Trustee May File Proofs of Claim	 	 	66	 
	Section 6.10
	 	Priorities	 	 	66	 
	Section 6.11
	 	Undertaking for Costs	 	 	66	 
	 
	 	 	 	 	 	 
	ARTICLE 7

	TRUSTEE

	 
	 	 	 	 	 	 
	Section 7.01
	 	Duties of Trustee	 	 	67	 
	Section 7.02
	 	Rights of Trustee	 	 	68	 
	Section 7.03
	 	Individual Rights of Trustee	 	 	68	 
	Section 7.04
	 	Trustee’s Disclaimer	 	 	69	 
	Section 7.05
	 	Notice of Defaults	 	 	69	 
	Section 7.06
	 	Reports by Trustee to Holders of the Notes	 	 	69	 
	Section 7.07
	 	Compensation and Indemnity	 	 	69	 
	Section 7.08
	 	Replacement of Trustee	 	 	70	 
	Section 7.09
	 	Successor Trustee by Merger, etc.	 	 	71	 
	Section 7.10
	 	Eligibility; Disqualification	 	 	71	 
	Section 7.11
	 	Preferential Collection of Claims Against Company	 	 	71	 
	 
	 	 	 	 	 	 
	ARTICLE 8

	LEGAL DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 	 	 
	Section 8.01
	 	Option to Effect Legal Defeasance or Covenant Defeasance	 	 	71	 
	Section 8.02
	 	Legal Defeasance and Discharge	 	 	71	 
	Section 8.03
	 	Covenant Defeasance	 	 	72	 
	Section 8.04
	 	Conditions to Legal or Covenant Defeasance	 	 	72	 
	Section 8.05
	 	Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions	 	 	74	 
	Section 8.06
	 	Repayment to Company	 	 	74	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 8.07
	 	Reinstatement	 	 	74	 
	 
	 	 	 	 	 	 
	ARTICLE 9

	AMENDMENT, SUPPLEMENT AND WAIVER

	 
	 	 	 	 	 	 
	Section 9.01
	 	Without Consent of Holders of Notes	 	 	75	 
	Section 9.02
	 	With Consent of Holders of Notes	 	 	75	 
	Section 9.03
	 	Compliance with Trust Indenture Act	 	 	77	 
	Section 9.04
	 	Revocation and Effect of Consents	 	 	77	 
	Section 9.05
	 	Notation on or Exchange of Notes	 	 	77	 
	Section 9.06
	 	Trustee to Sign Amendments, etc.	 	 	77	 
	 
	 	 	 	 	 	 
	ARTICLE 10

	NOTE GUARANTEES

	 
	 	 	 	 	 	 
	Section 10.01.
	 	Guarantee	 	 	78	 
	Section 10.02.
	 	Limitation on Guarantor Liability	 	 	79	 
	Section 10.03.
	 	Execution and Delivery of Note Guarantee	 	 	79	 
	Section 10.04.
	 	Guarantors May Consolidate, etc., on Certain Terms	 	 	79	 
	Section 10.05.
	 	Releases	 	 	80	 
	 
	 	 	 	 	 	 
	ARTICLE 11

	SATISFACTION AND DISCHARGE

	Section 11.01
	 	Satisfaction and Discharge	 	 	81	 
	Section 11.02
	 	Application of Trust Money	 	 	82	 
	 
	 	 	 	 	 	 
	ARTICLE 12

	MISCELLANEOUS

	 
	 	 	 	 	 	 
	Section 12.01
	 	Trust Indenture Act Controls	 	 	82	 
	Section 12.02
	 	Notices	 	 	82	 
	Section 12.03
	 	Communication by Holders of Notes with Other Holders of Notes	 	 	83	 
	Section 12.04
	 	Certificate and Opinion as to Conditions Precedent	 	 	84	 
	Section 12.05
	 	Statements Required in Certificate or Opinion	 	 	84	 
	Section 12.06
	 	Rules by Trustee and Agents	 	 	84	 
	Section 12.07
	 	No Personal Liability of Directors, Officers, Employees and Stockholders	 	 	84	 
	Section 12.08
	 	Governing Law	 	 	84	 
	Section 12.09
	 	No Adverse Interpretation of Other Agreements	 	 	85	 
	Section 12.10
	 	Successors	 	 	85	 
	Section 12.11
	 	Severability	 	 	85	 
	Section 12.12
	 	Counterpart Originals	 	 	85	 
	Section 12.13
	 	Table of Contents, Headings, etc.	 	 	85	 






EXHIBITS




	 	 	 
	Exhibit A

	 	FORM OF NOTE
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	Exhibit D

	 	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
	Exhibit E

	 	FORM OF NOTATION OF GUARANTEE
	Exhibit F

	 	FORM OF SUPPLEMENTAL INDENTURE







iii











 





     INDENTURE dated as of December 10, 2009 among JDA Software Group, Inc., a Delaware
corporation, the Guarantors (as defined below) and U.S. Bank National Association, as trustee.



     The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders (as defined below) of the 8.0% Senior Notes due
2014 (the “Notes”):



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE





			
	Section 1.01	 	Definitions.





     “144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.



     “Acquired Debt” means, with respect to any specified Person, Indebtedness of any other Person
existing at the time such other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of,
such specified Person.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control,” as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to
be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under
common control with” have correlative meanings.



     “Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.



     “Applicable Premium” means, with respect to any Note on any redemption date, the greater of:




(1) 1.0% of the principal amount of the Note; or




     (2) the excess of: (a) the present value at such redemption date of (i) the redemption
price of the Note at December 15, 2012, (such redemption price being set forth in the table
appearing in Section 3.07 hereof) plus (ii) all required interest payments due on the Note
through December 15, 2012, (excluding accrued but unpaid interest to the redemption date),
computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50
basis points; over (b) the principal amount of the Note.



     “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream
that apply to such transfer or exchange.



     “Asset Sale” means:



1









 






     (1) the sale, lease, conveyance or other disposition of any assets by the Company or
any of the Company’s Restricted Subsidiaries; provided that the sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole will be governed by Sections 4.15 and 5.01
hereunder and not by Section 4.10 hereunder; and




     (2) the issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or
the sale by the Company or any of the Company’s Restricted Subsidiaries of Equity Interests
in any of the Company’s Subsidiaries.




Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:




     (1) any single transaction or series of related transactions that involves assets
having a Fair Market Value of less than $10.0 million;




     (2) a transfer of assets between or among the Company and its Wholly Owned Restricted
Subsidiaries;




     (3) an issuance of Equity Interests by a Restricted Subsidiary of the Company to the
Company or to a Wholly Owned Restricted Subsidiary of the Company;




     (4) the sale, lease or other transfer of products, services or accounts receivable in
the ordinary course of business and any sale or other disposition of damaged, worn-out or
obsolete assets in the ordinary course of business (including the abandonment or other
disposition of intellectual property that is, in the reasonable judgment of the Company, no
longer economically practicable to maintain or useful in the conduct of the business of the
Company and its Restricted Subsidiaries taken as whole);




     (5) licenses and sublicenses by the Company or any of its Restricted Subsidiaries of
software or intellectual property in the ordinary course of business;




     (6) any surrender or waiver of contract rights or settlement, release, recovery on or
surrender of contract, tort or other claims in the ordinary course of business;




     (7) the granting of Liens not prohibited by Section 4.12 hereof;




     (8) the sale or other disposition of cash or Cash Equivalents;




     (9) a Restricted Payment that does not violate Section 4.07 hereof; and




     (10) any exchange of like property pursuant to Section 1031 of the Internal Revenue
Code of 1986, as amended, for use in a Permitted Business.



     “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.



     “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to
have beneficial ownership of all securities that such “person” has the right to acquire by
conversion or exercise of other



2









 




securities, whether such right is currently exercisable or is exercisable only after the
passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding
meaning.





“Board of Directors” means:




     (1) with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;




     (2) with respect to a partnership, the Board of Directors of the general partner of the
partnership;




     (3) with respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof; and




     (4) with respect to any other Person, the board or committee of such Person serving a
similar function.




“Broker-Dealer” means any broker or dealer registered with the SEC under the Exchange Act.




“Business Day” means any day other than a Legal Holiday.



     “Capital Lease Obligation” means, at the time any determination is to be made, the amount of
the liability in respect of a capital lease that would at that time be required to be capitalized
on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be prepaid by the lessee without payment of a penalty.



     “Capital Stock” means:




(1) in the case of a corporation, corporate stock;




     (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;




     (3) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and




     (4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation with Capital Stock.




“Cash Equivalents” means:




     (1) United States dollars;




     (2) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided that
the full faith and credit of the United States is pledged in support of those securities)
having maturities of not more than six months from the date of acquisition;



3









 






     (3) certificates of deposit and eurodollar time deposits with maturities of six months
or less from the date of acquisition, bankers’ acceptances with maturities not exceeding six
months and overnight bank deposits, in each case, with any domestic commercial bank having
capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of “B” or
better;




     (4) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;




     (5) commercial paper having one of the two highest ratings obtainable from Moody’s or
S&P and, in each case, maturing within six months after the date of acquisition; and




     (6) money market funds at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in clauses (1) through (5) of this definition; and




     (7) in the case of any Foreign Subsidiary:




     (a) currency for the countries in which such Foreign Subsidiary conducts
business;




     (b) direct obligations of the sovereign nation, or any agency thereof, in which
such Foreign Subsidiary is organized and conducting business in or in obligations
fully and conditionally guaranteed by such sovereign nation, or any agency thereof;




     (c) investments of the type and maturity described in clauses (2) through (6)
above of foreign obligors, which investments or obligors have ratings described in
such clauses or equivalent ratings from comparable foreign rating agencies; and




     (d) investments of the type and maturity described in clauses (2) through (6)
above of foreign obligors which investments or obligors are not rated as provided in
such clauses or in clause (c) above but which are, in the reasonable judgment of the
Company, comparable in investment quality to such investments and obligors, or the
direct or indirect parent of such obligors.




“Change of Control” means the occurrence of any of the following:




     (1) the direct or indirect sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the properties or assets of the Company and its Subsidiaries
taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange
Act);




     (2) the adoption of a plan relating to the liquidation or dissolution of the Company;




     (3) the consummation of any transaction (including, without limitation, any merger or
consolidation), the result of which is that any “person” (as defined above) becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the
Company, measured by voting power rather than number of shares; or




     (4) the first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.



4









 






“Company” means JDA Software Group, Inc., and any and all successors thereto.



     “Consolidated EBITDA” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus, without duplication:




     (1) an amount equal to any extraordinary loss plus any net loss realized by such Person
or any of its Restricted Subsidiaries in connection with an Asset Sale, to the extent such
losses were deducted in computing such Consolidated Net Income; plus




     (2) provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was deducted in
computing such Consolidated Net Income; plus




     (3) the Fixed Charges of such Person and its Restricted Subsidiaries for such period,
to the extent that such Fixed Charges were deducted in computing such Consolidated Net
Income; plus




     (4) the Transaction Costs for such period, to the extent that such Transaction Costs
were deducted in computing such Consolidated Net Income; plus




     (5) any foreign currency translation losses (including losses related to currency
remeasurements of Indebtedness) of such Person and its Restricted Subsidiaries for such
period, to the extent that such losses were taken into account in computing such
Consolidated Net Income; plus




     (6) depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) and other non-cash
charges and expenses (excluding any such non-cash charge or expense to the extent that it
represents an accrual of or reserve for cash charges or expenses in any future period or
amortization of a prepaid cash charge or expense that was paid in a prior period) of such
Person and its Restricted Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash charges or expenses were deducted in computing such
Consolidated Net Income; minus




     (7) non-cash items increasing such Consolidated Net Income for such period, other than
the accrual of revenue in the ordinary course of business,




in each case, on a consolidated basis and determined in accordance with GAAP.




“Clearstream” means Clearstream Banking, S.A.



     “Consolidated Net Income” means, with respect to any specified Person for any period, the
aggregate of the net income (loss) of such Person and its Restricted Subsidiaries for such period,
on a consolidated basis (excluding the net income (loss) of any Unrestricted Subsidiary of such
Person), determined in accordance with GAAP and without any reduction in respect of preferred stock
dividends; provided that:




     (1) all gains or losses realized in connection with any Asset Sale or the disposition
of securities or the early extinguishment of Indebtedness, together with any related
provision for taxes on any such gain, will be excluded;



5









 






     (2) the net income (but not loss) of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting will be included only to the extent
of the amount of dividends or similar distributions paid in cash to the specified Person or
a Restricted Subsidiary of the Person;




     (3) the net income (but not loss) of any Restricted Subsidiary will be excluded to the
extent that the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that net income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders;




     (4) the cumulative effect of a change in accounting principles will be excluded; and




     (5) non-cash gains and losses attributable to movement in the mark-to-market valuation
of Hedging Obligations pursuant to Financial Accounting Standards Board Statement No. 133
will be excluded.



     “continuing” means, with respect to any Default or Event of Default, that such Default or
Event of Default has not been cured or waived.



     “Continuing Directors” means, as of any date of determination, any member of the Board of
Directors of the Company who:




     (1) was a member of such Board of Directors on the date that is two years prior to the
date of determination; or




     (2) was nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board of Directors at the
time of such nomination or election.



     “Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in
Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company.



     “Credit Agreement” means that certain Credit Agreement, dated as of July 5, 2006, among the
Company, Manugistics Group, Inc., the lenders from time to time party thereto, Citicorp North
America, Inc., as Administrative Agent and Collateral Agent, Citibank, N.A., as Issuing Bank, UBS
Securities LLC, as Syndication Agent and Wells Fargo Foothill, LLC, as Documentation Agent, as
amended.



     “Credit Facilities” means (i) one or more debt facilities or commercial paper facilities, in
each case, with banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such receivables) or letters of
credit and (ii) sales of debt securities to institutional investors, in each case, as amended,
restated, modified, renewed, refunded, replaced in any manner (whether upon or after termination or
otherwise) or refinanced in whole or in part from time to time.



     “Credit Facility Indebtedness” means Indebtedness under Credit Facilities that was permitted
by the terms of this Indenture to be incurred pursuant to clause (1) of the definition of
“Permitted Debt.”




6











 





     “Credit Facility Leverage Ratio” means, as of any date of determination, the ratio of (i)
Credit Facility Indebtedness as of such date (giving pro forma effect to any Credit Facility
Indebtedness to be incurred on such date and the application of the net proceeds therefrom) to (ii)
Consolidated EBITDA for the most recently completed four fiscal quarter period for which financial
statements are available.



     In addition, for purposes of calculating the Credit Facility Leverage Ratio:




     (1) acquisitions that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations, or any Person or any of its
Restricted Subsidiaries acquired by the specified Person or any of its Restricted
Subsidiaries, and including all related financing transactions and including increases in
ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent
to such reference period and on or prior to the Calculation Date, or that are to be made on
the Calculation Date, will be given pro forma effect (in accordance with Regulation S-X
under the Securities Act), including Pro Forma Cost Savings whether or not such Pro Forma
Cost Savings comply with Regulation S-X, as if they had occurred on the first day of the
four-quarter reference period;




     (2) the Consolidated EBITDA attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Calculation Date, will be excluded;




     (3) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed
to have been a Restricted Subsidiary at all times during such four-quarter period; and




     (4) any Person that is not a Restricted Subsidiary on the Calculation Date will be
deemed not to have been a Restricted Subsidiary at any time during such four-quarter period.



     “Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.



     “Default” means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.



     “Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except
that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges
of Interests in the Global Note” attached thereto.



     “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and
any and all successors thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.



     “Designated Noncash Consideration” means the Fair Market Value of non-cash consideration
received by the Company or any Restricted Subsidiary in connection with an Asset Sale that is so
designated as Designated Noncash Consideration pursuant to an officer’s certificate delivered to
the trustee, setting forth the basis of such value.



     “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case, at the option
of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a



7









 




sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital
Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the
Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset
sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the
Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such
repurchase or redemption complies with Section 4.07 hereof. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that
the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or
pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued
dividends. The Series A preferred stock issued pursuant to the Rights Agreement between the
Company and ChaseMellon Shareholder Services, as Rights Agent, dated October 2, 1998, as amended
through the date of this Indenture, shall not be deemed to be Disqualified Stock.




     “Domestic Subsidiary” means any Restricted Subsidiary of the Company that was formed under the
laws of the United States or any state of the United States or the District of Columbia or that
guarantees or otherwise provides direct credit support for any Indebtedness of the Company.



     “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).



     “Equity Offering” means a sale of Equity Interests of the Company by the Company (other than
Disqualified Stock and other than to a Subsidiary of the Company).



     “Escrow Agent” means U.S. Bank National Association, in its capacities as escrow agent,
depositary bank and securities intermediary under the Escrow Agreement.



     “Escrow Agreement” means the Escrow and Security Agreement, dated as of December 10, 2009, by
and between the Company, the Escrow Agent and the Trustee.



     “Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Exchange Notes” means the Notes issued in the Exchange Offer pursuant to Section 2.06(f)
hereof.



     “Exchange Offer” has the meaning set forth in the Registration Rights Agreement.



     “Exchange Offer Registration Statement” has the meaning set forth in the Registration Rights
Agreement.



     “Existing Indebtedness” means all Indebtedness of the Company and its Subsidiaries (other than
Indebtedness under the Credit Agreement, except for letters of credit that are cash collateralized
prior to the date of this Indenture) in existence on the date of this Indenture, until such amounts
are repaid.



     “Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either party, determined in
good faith by the Board of Directors of the Company (unless otherwise provided in this Indenture).



8









 





     “Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the
ratio of the Consolidated EBITDA of such Person for such period to the Fixed Charges of such Person
for such period. In the event that the specified Person or any of its Restricted Subsidiaries
incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any
Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems
preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated and on or prior to the date on which the event for which the calculation
of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage
Ratio will be calculated giving pro forma effect (in accordance with Regulation S-X under the
Securities Act) to such incurrence, assumption, Guarantee, repayment, repurchase, redemption,
defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of
preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the
beginning of the applicable four-quarter reference period.



     In addition, for purposes of calculating the Fixed Charge Coverage Ratio:




     (1) acquisitions that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations, or any Person or any of its
Restricted Subsidiaries acquired by the specified Person or any of its Restricted
Subsidiaries, and including all related financing transactions and including increases in
ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent
to such reference period and on or prior to the Calculation Date, or that are to be made on
the Calculation Date, will be given pro forma effect (in accordance with Regulation S-X
under the Securities Act), including Pro Forma Cost Savings whether or not such Pro Forma
Cost Savings comply with Regulation S-X, as if they had occurred on the first day of the
four-quarter reference period;




     (2) the Consolidated EBITDA attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Calculation Date, will be excluded;




     (3) the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Calculation Date, will be excluded, but only to the extent that the
obligations giving rise to such Fixed Charges will not be obligations of the specified
Person or any of its Restricted Subsidiaries following the Calculation Date;




     (4) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed
to have been a Restricted Subsidiary at all times during such four-quarter period;




     (5) any Person that is not a Restricted Subsidiary on the Calculation Date will be
deemed not to have been a Restricted Subsidiary at any time during such four-quarter period;
and




     (6) if any Indebtedness bears a floating rate of interest, the interest expense on such
Indebtedness will be calculated as if the rate in effect on the Calculation Date had been
the applicable rate for the entire period (taking into account any Hedging Obligation
applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the
Calculation Date in excess of 12 months).



9









 





     “Fixed Charges” means, with respect to any specified Person for any period, the sum, without
duplication, of:




     (1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers’ acceptance financings, and net of the
effect of all payments made or received pursuant to Hedging Obligations in respect of
interest rates; plus




     (2) the consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period; plus




     (3) any interest on Indebtedness of another Person that is guaranteed by such Person or
one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus




     (4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries,
other than dividends on Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company,
times (b) a fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal,



     in each case, determined on a consolidated basis in accordance with GAAP.



     “Foreign Subsidiary” means any Restricted Subsidiary of the Company that is not a Domestic
Subsidiary.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect on the date of this Indenture.



     “Global Note Legend” means the legend set forth in Section 2.06(g)(2) hereof, which is
required to be placed on all Global Notes issued under this Indenture.



     “Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the
Depository or its nominee, substantially in the form of Exhibit A hereto and that bears the Global
Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached
thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or 2.06(f)
hereof.



     “Government Securities” means direct obligations (or certificates representing an ownership in
such obligations) of, or guaranteed by, the United States of America (including an agency or
instrumentality thereof), and the payment for which the United States pledges its full faith and
credit.



     “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without



10









 




limitation, by way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or
services, to take or pay or to maintain financial statement conditions or otherwise).




     “Guarantors” means any Subsidiary of the Company that executes a Note Guarantee in accordance
with the provisions of this Indenture, and their respective successors and assigns, in each case,
until the Note Guarantee of such Person has been released in accordance with the provisions of this
Indenture.



     “Hedging Obligations” means, with respect to any specified Person, the obligations of such
Person under:




     (1) interest rate swap agreements (whether from fixed to floating or from floating to
fixed), interest rate cap agreements and interest rate collar agreements;




     (2) other agreements or arrangements designed to manage interest rates or interest rate
risk; and




     (3) other agreements or arrangements designed to protect such Person against
fluctuations in currency exchange rates or commodity prices.



     “Holder” means a Person in whose name a Note is registered.



     “IAI Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee that will be issued in a denomination equal
to the outstanding principal amount of the Notes sold to Institutional Accredited Investors.



     “Immaterial Subsidiary” means, as of any date, any Subsidiary whose total assets, as of that
date, are less than $250,000 and whose total revenues for the most recent 12-month period do not
exceed $250,000; provided that a Subsidiary will not be considered to be an Immaterial Subsidiary
if it, directly or indirectly, guarantees or otherwise provides direct credit support for any
Indebtedness of the Company.



     “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person
(excluding accrued expenses, trade payables and time-based licenses), whether or not contingent:




     (1) in respect of borrowed money;




     (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit
(or reimbursement agreements in respect thereof);




     (3) in respect of banker’s acceptances;




     (4) representing Capital Lease Obligations;




     (5) representing the balance deferred and unpaid of the purchase price of any property
or services due more than nine months after such property is acquired or such services are
completed; or




     (6) representing any Hedging Obligations,



11









 




if and to the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed
by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified
Person of any Indebtedness of any other Person. Indebtedness shall be calculated without giving
effect to the effects of Statement of Financial Accounting Standards No. 133 and related
interpretations to the extent such effects would otherwise increase or decrease an amount of
Indebtedness for any purpose under this Indenture as a result of accounting for any embedded
derivatives created by the terms of such Indebtedness.




     “Indenture” means this Indenture, as amended or supplemented from time to time.



     “Indirect Participant” means a Person who holds a beneficial interest in a Global Note through
a Participant.



     “Institutional Accredited Investor” means an institution that is an “accredited investor” as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.



     “Investments” means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other
obligations), advances or capital contributions (excluding commission, payroll, travel, moving and
similar advances to officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other securities,
together with all items that are or would be classified as investments on a balance sheet prepared
in accordance with GAAP. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the
Company such that, after giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company, the Company will be deemed to have made an Investment on the
date of any such sale or disposition equal to the Fair Market Value of the Company’s Investments in
such Subsidiary that were not sold or disposed of in an amount determined as provided in the final
paragraph of Section 4.07 hereunder.” The acquisition by the Company or any Restricted Subsidiary
of the Company of a Person that holds an Investment in a third Person will be deemed to be an
Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal to
the Fair Market Value of the Investments held by the acquired Person in such third Person in an
amount determined as provided in the final paragraph of Section 4.07 hereunder.” Except as
otherwise provided in this Indenture, the amount of an Investment will be determined at the time
the Investment is made and without giving effect to subsequent changes in value.



     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City
of New York or at a place of payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such
payment for the intervening period.



     “Letter of Transmittal” means the letter of transmittal to be prepared by the Company and sent
to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or



12









 




agreement to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction.




     “Merger” means that certain merger of Alpha Acquisition Corp. with and into i2 Technologies,
Inc. pursuant to the Merger Agreement.



     “Merger Agreement” means that certain Agreement and Plan of Merger dated as of November 4,
2009, by and among the Company, Alpha Acquisition Corp. and i2 Technologies, Inc., together with
any amendments, modifications and waivers that are not, in the good faith determination of the
Board of Directors of the Company, individually or in the aggregate, materially adverse to the
Holders of the notes.



     “Moody’s” means Moody’s Investors Service, Inc.



     “Net Proceeds” means the aggregate cash proceeds and Cash Equivalents received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation,
any cash or Cash Equivalents received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale,
including, without limitation, legal, accounting and investment banking fees, and sales
commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or
payable as a result of the Asset Sale, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements and any reserve for adjustment or
indemnification obligations in respect of the sale price of such asset or assets established in
accordance with GAAP.



     “Non-Recourse Debt” means Indebtedness:




     (1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) or (b) is directly or indirectly liable as a guarantor or
otherwise; and




     (2) no default with respect to which (including any rights that the Holders thereof may
have to take enforcement action against an Unrestricted Subsidiary) would permit upon
notice, lapse of time or both any holder or holders of any other Indebtedness (other than
the notes) of the Company or any Restricted Subsidiary in an aggregate principal amount of
$25.0 million or more to declare a default on the other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity.



     “Non-U.S. Person” means a Person who is not a U.S. Person.



     “Note Guarantee” means the Guarantee by each Guarantor of the Company’s obligations under this
Indenture and the Notes, executed pursuant to the provisions of this Indenture.



     “Notes” has the meaning assigned to it in the preamble to this Indenture.



     “Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.



     “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.



13









 





     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.



     “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.



     “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to
DTC, shall include Euroclear and Clearstream).



     “Permitted Business” means any business that is the same as, or reasonably related, ancillary
or complementary to, or reasonable extensions of, any of the businesses in which the Company, i2
Technologies, Inc. or any of their respective Subsidiaries are engaged on the date of this
Indenture.



     “Permitted Investments” means:




     (1) any Investment in the Company or in a Restricted Subsidiary of the Company;




     (2) any Investment in Cash Equivalents;




     (3) any Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:




     (a) such Person becomes a Restricted Subsidiary of the Company; or





     (b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the Company;




     (4) any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof or any other
disposition of assets not constituting an Asset Sale;




     (5) any Investment made solely in exchange for the issuance of Equity Interests (other
than Disqualified Stock) of the Company;




     (6) any Investments received in compromise or resolution of (A) obligations that were
incurred in the ordinary course of business of the Company or any of its Restricted
Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon
the bankruptcy or insolvency of any trade creditor or customer; or (B) litigation,
arbitration or other disputes;




     (7) Investments represented by Hedging Obligations;




     (8) loans or advances to employees made in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company in an aggregate principal amount not to
exceed $5.0 million at any one time outstanding;



14









 






     (9) repurchases of the Notes;




     (10) any guarantee of Indebtedness permitted to be incurred by Section 4.09 hereof
other than a guarantee of Indebtedness of an Affiliate of the Company that is not a
Restricted Subsidiary of the Company;




     (11) any Investment existing on, or made pursuant to binding commitments existing on,
the date of this Indenture and any Investment consisting of an amendment, restatement,
supplement, refunding, replacement, refinancing, extension, modification, renewal or
exchange of any Investment existing on, or made pursuant to a binding commitment existing
on, the date of this Indenture; provided that the amount of any such Investment may be
increased (a) as required by the terms of such Investment as in existence on the date of
this Indenture or (b) as otherwise permitted under this Indenture;




     (12) Investments acquired after the date of this Indenture as a result of the
acquisition by the Company or any Restricted Subsidiary of the Company of another Person,
including by way of a merger, amalgamation or consolidation with or into the Company or any
of its Restricted Subsidiaries in a transaction that is not prohibited by Section 5.01
hereunder after the date of this Indenture to the extent that such Investments were not made
in contemplation of such acquisition, merger, amalgamation or consolidation and were in
existence on the date of such acquisition, merger, amalgamation or consolidation;




     (13) other Investments in any Person having an aggregate Fair Market Value (measured on
the date each such Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made after the date of this Indenture
pursuant to this clause (13) that are at the time outstanding not to exceed the greater of
$25.0 million and 2.5% of Total Assets (taking into account any return on such Investments
by reducing the amount of such Investments deemed outstanding hereunder);




     (14) Investments in Permitted Joint Ventures that are at the time outstanding not to
exceed the greater of $25.0 million and 2.5% of Total Assets (taking into account any return
on such Investments by reducing the amount of such Investments deemed outstanding
hereunder);




     (15) receivables owing to the Company or any Restricted Subsidiary if created or
acquired in the ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided that such trade terms may include such concessionary trade
terms as the Company or such Restricted Subsidiary deems reasonable under the circumstances;




     (16) Investments consisting of licensing or contribution of intellectual property
pursuant to joint development, marketing, manufacturing or similar agreements with other
Persons;




     (17) Investments arising from the cashless exercise by employees of the Company or any
Restricted Subsidiary of rights, options or warrants to purchase Capital Stock of the
Company;




(18) lease, utility and similar deposits made in the ordinary course of business;




     (19) Investments representing amounts held for employees of the Company or any
Restricted Subsidiary under deferred compensation plans; and



15









 






     (20) Investments made in the form of a loan to a Person pending the acquisition of the
Capital Stock or all or substantially all of the assets or a line of business of such Person
(regardless of how structured) following the execution of a definitive agreement in respect
of such acquisition.



     “Permitted Joint Venture” means any entity characterized as a joint venture, however
structured, engaged in a Permitted Business in which the Company or any Restricted Subsidiary has
an ownership interest; provided that such joint venture is not a Subsidiary of the Company.




“Permitted Liens” means:




     (1) Liens on assets of the Company or any Restricted Subsidiary securing Indebtedness
and other Obligations under Credit Facilities that were permitted by the terms of this
Indenture to be incurred pursuant to clause (1) of the definition of “Permitted Debt” and/or
securing Hedging Obligations and/or securing Obligations with regard to Treasury Management
Arrangements;




     (2) Liens in favor of the Company or any Restricted Subsidiary;




     (3) Liens on property of a Person existing at the time such Person becomes a Restricted
Subsidiary of the Company or is merged with or into or consolidated with the Company or any
Restricted Subsidiary of the Company; provided that such Liens were not incurred in
contemplation of such Person becoming a Restricted Subsidiary of the Company or such merger
or consolidation and do not extend to any assets other than those of the Person that becomes
a Restricted Subsidiary of the Company or is merged with or into or consolidated with the
Company or any Restricted Subsidiary of the Company;




     (4) Liens on property (including Capital Stock) existing at the time of acquisition of
the property by the Company or any Subsidiary of the Company; provided that such Liens were
in existence prior to such acquisition and not incurred in contemplation of, such
acquisition;




     (5) Liens to secure the performance of statutory or regulatory obligations, insurance,
surety or appeal bonds, workers compensation, unemployment insurance, social security or
similar obligations, performance bonds, deposits to secure the performance of tenders, bids,
trade contracts, government contracts, import duties, payment of rent, performance, letters
of credit and return-of-money bonds, leases or licenses or other obligations of a like
nature incurred in the ordinary course of business;




     (6) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
Section 4.09(b)(4) covering only the assets acquired with or financed by such Indebtedness;




     (7) Liens existing on the date of this Indenture;




     (8) Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent, that are not subject to penalties or interest for non-payment or that are being
contested in good faith by appropriate proceedings; provided that any reserve or other
appropriate provision as is required in conformity with GAAP has been made therefor;




     (9) Liens imposed by law, such as carriers’, warehousemen’s, landlord’s, mechanics’,
materialmen’s, repairmen’s, suppliers’ or similar Liens, in each case, incurred in the
ordinary course of business;




16











 






     (10) survey exceptions, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real property that were
not incurred in connection with Indebtedness and that (a) do not in the aggregate materially
adversely affect the value of said properties or (b) do not materially impair their use in
the operation of the Company and its Restricted Subsidiaries taken as a whole;




     (11) Liens created for the benefit of (or to secure) the Notes (or the Note
Guarantees);




     (12) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred
under this Indenture; provided that:




     (a) the new Lien is limited to all or part of the same property and assets that
secured or, under the written agreements pursuant to which the original Lien arose,
could secure, the original Lien (plus improvements and accessions to, such property
or proceeds or distributions thereof); and




     (b) the Indebtedness secured by the new Lien is not increased to any amount
greater than the sum of (x) the outstanding principal amount, or, if greater,
committed amount, of the Indebtedness renewed, refunded, refinanced, replaced,
defeased or discharged with such Permitted Refinancing Indebtedness and (y) an
amount necessary to pay any fees and expenses, including premiums, related to such
renewal, refunding, refinancing, replacement, defeasance or discharge;




     (13) Liens on insurance policies and proceeds thereof, or other deposits to secure
liability to insurance carriers;




     (14) filing of Uniform Commercial Code financing statements as a precautionary measure
in connection with leases;




     (15) bankers’ Liens, rights of setoff, Liens arising out of judgments or awards not
constituting an Event of Default and notices of lis pendens and associated rights related to
litigation being contested in good faith by appropriate proceedings and for which adequate
reserves have been made;




     (16) Liens on cash, Cash Equivalents or other property arising in connection with the
defeasance, discharge or redemption of Indebtedness;




     (17) Liens on specific items of inventory or other goods (and the proceeds thereof) of
any Person securing such Person’s obligations in respect of bankers’ acceptances issued or
created in the ordinary course of business;




     (18) grants of software and other technology licenses or sublicenses in the ordinary
course of business;




     (19) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into in the ordinary course of business;




     (20) Liens incurred with respect to obligations of the Company or any of its Restricted
Subsidiaries that do not exceed $50.0 million at any one time outstanding;



17









 






     (21) Liens securing Indebtedness permitted by clause (12), (14) and (15) (to the extent
the Liens were in existence on the date of incurrence of the Acquired Debt and not incurred
in connection with, or in contemplation of, the incurrence of the Acquired Debt) of the
definition of “Permitted Debt;”




     (22) Liens in favor of customs and revenue authorities to secure payment of customs
duties in connection with the importation of goods in the ordinary course of business and
other similar Liens arising in the ordinary course of business; and




     (23) leases or subleases granted in the ordinary course to third Persons not materially
interfering with the business of the Company and its Restricted Subsidiaries taken as a
whole.



     “Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to renew,
refund, refinance, replace, defease or discharge other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:




     (1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or
discharged (plus all accrued interest on the Indebtedness and the amount of all fees and
expenses, including premiums, incurred in connection therewith);




     (2) such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity that is (a) equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed,
refunded, refinanced, replaced, defeased or discharged or (b) more than 90 days after the
final maturity date of the Notes;




     (3) if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Notes on terms at least as favorable
to the Holders of the Notes as those contained in the documentation governing the
Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; and




     (4) such Indebtedness is incurred by the Company, a Guarantor or the Restricted
Subsidiary of the Company that was the obligor on the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged and, in the case of Indebtedness incurred by a
Restricted Subsidiary that is not a Guarantor, is guaranteed only by Persons who were
obligors on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged.



     “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.



     “Private Placement Legend” means the legend set forth in Section 2.06(g)(1) hereof to be
placed on all Notes issued under this Indenture except where otherwise permitted by the provisions
of this Indenture.



     “Pro Forma Cost Savings” means, with respect to any period, the reduction in net costs and
related adjustments that (i) were directly attributable to an acquisition that occurred during the
four quarter period or after the end of the four quarter period and on or prior to the Calculation
Date and



18









 







calculated on a basis that is consistent with Regulation S-X under the Securities Act as then
in effect, (ii) were actually implemented by the business that was the subject of any such
acquisition within six months after the date of the acquisition and prior to the Calculation Date
that are supportable and quantifiable by the underlying accounting records of such business or
(iii) relate to the business that is the subject of any such acquisition and that the Company
reasonably determines are probable based upon specifically identifiable actions to be taken within
six months of the date of the acquisition and, in the case of each of (i), (ii) and (iii), are
described, as provided below in an Officers’ Certificate, as if all such reductions in costs had
been effected as of the beginning of such period. Pro Forma Cost Savings described above shall be
accompanied by a certificate delivered to the Trustee from the Company’s chief financial officer
that outlines the specific actions taken or to be taken, the net cost savings achieved or to be
achieved from each such action and that, in the case of clause (iii) above, such savings have been
determined to be probable.



     “QIB” means a “qualified institutional buyer” as defined in Rule 144A.



     “Qualifying Equity Interests” means Equity Interests of the Company other than (1)
Disqualified Stock and (2) Equity Interests sold in an Equity Offering prior to the third
anniversary of the date of this Indenture that are eligible to be used to support an optional
redemption of notes pursuant to Section 3.07 hereof.



     “Registration Rights Agreement” means the Exchange and Registration Rights Agreement, dated as
of December 10, 2009, among the Company, the Guarantors and the other parties named on the
signature pages thereof, as such agreement may be amended, modified or supplemented from time to
time.



     “Regulation S” means Regulation S promulgated under the Securities Act.



     “Regulation S Global Note” means a Global Note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of
and registered in the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation S.



     “Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.



     “Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.



     “Restricted Global Note” means a Global Note bearing the Private Placement Legend.



     “Restricted Investment” means an Investment other than a Permitted Investment.



     “Restricted Period” means the 40-day distribution compliance period as defined in Regulation
S.



     “Restricted Subsidiary” of a Person means any Subsidiary of such Person that is not an
Unrestricted Subsidiary.



     “Rule 144” means Rule 144 promulgated under the Securities Act.



19









 





     “Rule 144A” means Rule 144A promulgated under the Securities Act.



     “Rule 903” means Rule 903 promulgated under the Securities Act.



     “Rule 904” means Rule 904 promulgated under the Securities Act.



     “S&P” means Standard & Poor’s Ratings Group.



     “SEC” means the Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Shelf Registration Statement” means the Shelf Registration Statement as defined in the
Registration Rights Agreement.



     “Significant Subsidiary” means any Restricted Subsidiary that would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such Regulation is in effect on the date of this Indenture.



     “Special Interest” has the meaning assigned to that term pursuant to the Registration Rights
Agreement.



     “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which the payment of interest or principal was scheduled to be
paid in the documentation governing such Indebtedness as of the date of this Indenture, and will
not include any contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.



     “Subsidiary” means, with respect to any specified Person:




     (1) any corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency and after giving effect to any voting agreement or stockholders’ agreement
that effectively transfers voting power) to vote in the election of directors, managers or
trustees of the corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and




     (2) any partnership or limited liability company of which (a) more than 50% of the
capital accounts, distribution rights, total equity and voting interests or general and
limited partnership interests, as applicable, are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that Person or a
combination thereof, whether in the form of membership, general, special or limited
partnership interests or otherwise, and (b) such Person or any Subsidiary of such Person is
a controlling general partner or otherwise controls such entity.



     “TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).



20









 





     “Total Assets” means the total assets of the Company and its Subsidiaries on a consolidated
basis determined in accordance with GAAP, as shown on the most recently available consolidated
balance sheet of the Company and its Subsidiaries.



     “Transaction Costs” means costs and fees incurred by the Company pursuant to (a) the Merger
and related financings, (b) any acquisition of (i) Investments permitted by clause (3) in the
definition of “Permitted Investments”, (ii) all or substantially all of the assets of such a Person
or line of business, division or business unit within the Permitted Business or (iii) any other
Permitted Business assets, in each case however consummated, if the acquisition does not violate
Section 4.07 hereunder or (c) any Asset Sale if such Asset Sale does not violate Section 4.10
hereunder.



     “Treasury Management Arrangement” means any agreement or other arrangement governing the
provision of treasury or cash management services, including deposit accounts, overdraft, credit or
debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check
concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade
finance services and other cash management services.



     “Treasury Rate” means, as of any redemption date, the yield to maturity as of such redemption
date of United States Treasury securities with a constant maturity (as compiled and published in
the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available
at least two business days prior to the redemption date (or, if such Statistical Release is no
longer published, any publicly available source of similar market data)) most nearly equal to the
period from the redemption date to December 15, 2012; provided that if the period from the
redemption date to December 15, 2012, is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one year will be used.



     “Trustee” means U.S. Bank National Association, until a successor replaces it in accordance
with the applicable provisions of this Indenture and thereafter means the successor serving
hereunder.



     “Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required
to bear the Private Placement Legend.



     “Unrestricted Global Note” means a Global Note that does not bear and is not required to bear
the Private Placement Legend.



     “Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board
of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of
Directors, but only to the extent that such Subsidiary:




     (1) has no Indebtedness other than Non-Recourse Debt;




     (2) except as permitted by Section 4.11 hereof, is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement or understanding are
no less favorable to the Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Company;




     (3) is a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve such Person’s financial condition or to cause such
Person to achieve any specified levels of operating results; and



21









 






     (4) has not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries; provided that the
Company and its Restricted Subsidiaries may guarantee the performance of Unrestricted
Subsidiaries in the ordinary course of business except for guarantees of Indebtedness.



     “U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities
Act.



     “Voting Stock” of any specified Person as of any date means the Capital Stock of such Person
that is at the time entitled to vote in the election of the Board of Directors of such Person.



     “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:




     (1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by




     (2) the then outstanding principal amount of such Indebtedness.



     “Wholly Owned Restricted Subsidiary” of any specified Person means a Restricted Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares) will at the time be owned by such Person or by one or more Wholly
Owned Restricted Subsidiaries of such Person.



Section 1.02 Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Affiliate Transaction”

	 	 	4.11	 
	“Asset Sale Offer”

	 	 	3.09	 
	“Authentication Order”

	 	 	2.02	 
	“Change of Control Offer”

	 	 	4.15	 
	“Change of Control Payment”

	 	 	4.15	 
	“Change of Control Payment Date”

	 	 	4.15	 
	“Covenant Defeasance”

	 	 	8.03	 
	“Deadline”

	 	 	3.08	 
	“DTC”

	 	 	2.03	 
	“Event of Default”

	 	 	6.01	 
	“Excess Proceeds”

	 	 	4.10	 
	“incur”

	 	 	4.09	 
	“Legal Defeasance”

	 	 	8.02	 
	“Offer Amount”

	 	 	3.09	 
	“Offer Period”

	 	 	3.09	 
	“Paying Agent”

	 	 	2.03	 
	“Permitted Debt”

	 	 	4.09	 
	“Payment Default”

	 	 	6.01	 
	“Purchase Date”

	 	 	3.09	 
	“Registrar”

	 	 	2.03	 






22









 






	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Restricted Payments”

	 	 	4.07	 
	“Reversion Date”

	 	 	4.18	 
	“Suspended Covenants”

	 	 	4.18	 
	“Suspension Date”

	 	 	4.18	 
	“Suspension Period”

	 	 	4.18	 






Section 1.03 Incorporation by Reference of Trust Indenture Act.




     Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.



     The following TIA terms used in this Indenture have the following meanings:



     “indenture securities” means the Notes;



     “indenture security Holder” means a Holder of a Note;



     “indenture to be qualified” means this Indenture;



     “indenture trustee” or “institutional trustee” means the Trustee; and



     “obligor” on the Notes and the Note Guarantees means the Company and the Guarantors,
respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.



     All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.



Section 1.04 Rules of Construction.




     Unless the context otherwise requires:




     (1) a term has the meaning assigned to it;




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (3) “or” is not exclusive;




     (4) words in the singular include the plural, and in the plural include the singular;




     (5) “will” shall be interpreted to express a command;




     (6) provisions apply to successive events and transactions; and




     (7) references to sections of or rules under the Securities Act will be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from time
to time.




23











 





ARTICLE 2

THE NOTES



Section 2.01 Form and Dating.




     (a) General. The Notes and the Trustee’s certificate of authentication will be substantially
in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The
Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.



     The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be controlling.



     (b) Global Notes. Notes issued in global form will be substantially in the form of Exhibit A
hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the
Global Note” attached thereto). Notes issued in definitive form will be substantially in the form
of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such
of the outstanding Notes as will be specified therein and each shall provide that it represents the
aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.



     (c) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the
“General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will
be applicable to transfers of beneficial interests in the Regulation S Global Note that are held by
Participants through Euroclear or Clearstream.


Section 2.02 Execution and Authentication.




     At least one Officer must sign the Notes for the Company by manual or facsimile signature.



     If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note will nevertheless be valid.



     A Note will not be valid until authenticated by the manual signature of the Trustee. The
signature will be conclusive evidence that the Note has been authenticated under this Indenture.



     The Trustee will, upon receipt of a written order of the Company signed by an Officer (an
“Authentication Order”), authenticate Notes for original issue that may be validly issued under
this Indenture. The aggregate principal amount of Notes outstanding at any time may not exceed the
aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more
Authentication Orders, except as provided in Section 2.07 hereof.



24









 





     The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of
the Company.


Section 2.03 Registrar and Paying Agent.




     The Company will maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for
payment (“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer
and exchange. The Company may appoint one or more co-registrars and one or more additional paying
agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any
additional paying agent. The Company may change any Paying Agent or Registrar without prior notice
to any Holder. The Company will notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.



     The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with
respect to the Global Notes.



     The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act
as Custodian with respect to the Global Notes.


Section 2.04 Paying Agent to Hold Money in Trust.




     The Company will require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal of, premium on, if any, interest or Special Interest, if
any, on, the Notes, and will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) will have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee will serve as Paying Agent for the Notes.


Section 2.05 Holder Lists.




     The Trustee will preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§312(a). If the Trustee is not the Registrar, the Company will furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA
§312(a).


Section 2.06 Transfer and Exchange.




     (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a
whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a



25









 




successor Depositary or a nominee of such successor Depositary. All Global Notes will be
exchanged by the Company for Definitive Notes if:





     (1) the Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice from the Depositary;




     (2) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee; or




     (3) there has occurred and is continuing a Default or Event of Default with respect to
the Notes.



     Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every
Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a); provided, however, that beneficial
interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or
(f) hereof.



     (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also will require compliance with either subparagraph (1) or (2)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:




     (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or instructions shall
be required to be delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(1).




     (2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the
Registrar either:




(A) both:




     (i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the



26









 






Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged; and




     (ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or




(B) both:




     (i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged; and




     (ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above.


Upon consummation of an Exchange Offer by the Company in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(2) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of
such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.





     (3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar
receives the following:




     (A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof;




     (B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Global Note, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item (2) thereof; and




     (C) if the transferee will take delivery in the form of a beneficial interest
in the IAI Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.




     (4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(2) above and:



27









 






     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it is not
(i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;




     (B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;




     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (1)(a) thereof; or




     (ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.



     If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.



     Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.



     (c) Transfer or Exchange of Beneficial Interests for Definitive Notes.




     (1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If
any holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:



28









 






     (A) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;




     (B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;




     (C) if such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (2)
thereof;




     (D) if such beneficial interest is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;




     (E) if such beneficial interest is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof, if
applicable;




     (F) if such beneficial interest is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or




     (G) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,


the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained therein.





     (2) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.
A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of such beneficial



29









 






interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes
or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;




     (B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;




     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or




     (ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.




     (3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.
If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction
of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company will execute and the Trustee will authenticate
and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(3) will be registered in such name or names and in
such authorized denomination or denominations as the holder of such beneficial interest
requests through instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(3) will not bear the Private
Placement Legend.




(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.




     (1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If
any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial



30









 






interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to
a Person who takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following documentation:




     (A) if the Holder of such Restricted Definitive Note proposes to exchange such
Note for a beneficial interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item (2)(b)
thereof;




     (B) if such Restricted Definitive Note is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;




     (C) if such Restricted Definitive Note is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;




     (D) if such Restricted Definitive Note is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;




     (E) if such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof, if
applicable;




     (F) if such Restricted Definitive Note is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or




     (G) if such Restricted Definitive Note is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,




the Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global
Note, in the case of clause (C) above, the Regulation S Global Note, and in all
other cases, the IAI Global Note.




     (2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution



31









 







of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule
144) of the Company;




     (B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;




     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (i) if the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or




     (ii) if the Holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item
(4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.




     Upon satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global Note pursuant to Section
2.06(h).




     (3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will
cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.




     If any such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an
Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Notes so transferred.



     (e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e),
the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange,
the requesting Holder must present or surrender to the Registrar the Definitive Notes duly



32









 




endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).





     (1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred
to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:




     (A) if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof;




     (B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in item (2) thereof; and




     (C) if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if applicable.




     (2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person
who is an affiliate (as defined in Rule 144) of the Company;




     (B) any such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;




     (C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (i) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or




     (ii) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an




33












 






Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the Securities
Act.




     (3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of
Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such
a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.



     (f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee will authenticate:




     (1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes accepted for
exchange in the Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Company; and




     (2) Unrestricted Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange
Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and
(C) they are not affiliates (as defined in Rule 144) of the Company.



     Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will
execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.



     (g) Legends. The following legends will appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions
of this Indenture.




     (1) Private Placement Legend.




     (A) Except as permitted by subparagraph (B) below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:


“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933
(THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)
(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN



34









 






ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL INVESTOR
THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501 OF REGULATION D UNDER THE SECURITIES
ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.”





     (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or
(f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.




     (2) Global Note Legend. Each Global Note will bear a legend in substantially the
following form:


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR
ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”




     (h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be
returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any
time prior to



35









 




such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest in another Global
Note or for Definitive Notes, the principal amount of Notes represented by such Global Note will be
reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note will be increased
accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary
at the direction of the Trustee to reflect such increase.




     (i) General Provisions Relating to Transfers and Exchanges.




     (1) To permit registrations of transfers and exchanges, the Company will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.




     (2) No service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 3.09, 4.10, 4.15 and 9.05 hereof).




     (3) The Registrar will not be required to register the transfer of or exchange of any
Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.




     (4) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes will be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.




     (5) Neither the Registrar nor the Company will be required:




     (A) to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any selection
of Notes for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection;




     (B) to register the transfer of or to exchange any Note selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part; or




     (C) to register the transfer of or to exchange a Note between a record date and
the next succeeding interest payment date.




     (6) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.



36









 






     (7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.




     (8) All certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or
exchange may be submitted by facsimile.



Section 2.07 Replacement Notes.




     If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will issue
and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if
the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond
must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a
Note.



     Every replacement Note is an additional obligation of the Company and will be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.



Section 2.08 Outstanding Notes.




     The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.



     If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.



     If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to
be outstanding and interest on it ceases to accrue.



     If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date,
then on and after that date such Notes will be deemed to be no longer outstanding and will cease to
accrue interest.



Section 2.09 Treasury Notes.




     In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company or any Guarantor, or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or any Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any such direction,
waiver or consent, only Notes that the Trustee knows are so owned will be so disregarded.



Section 2.10 Temporary Notes.




     Until certificates representing Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary
Notes



37









 




will be substantially in the form of certificated Notes but may have variations that the
Company considers appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate
definitive Notes in exchange for temporary Notes.




     Holders of temporary Notes will be entitled to all of the benefits of this Indenture.



Section 2.11 Cancellation.




     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent will forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and will destroy canceled
Notes (subject to the record retention requirement of the Exchange Act). Certification of the
destruction of all canceled Notes will be delivered to the Company. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.



Section 2.12 Defaulted Interest.




     If the Company defaults in a payment of interest on the Notes, it will pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. The Company will fix or cause to be fixed each such special record date and
payment date; provided that no such special record date may be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the name and at the
expense of the Company) will mail or cause to be mailed to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be paid.



ARTICLE 3

REDEMPTION AND PREPAYMENT




Section 3.01 Notices to Trustee.




     If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it must furnish to the Trustee, at least 30 days but not more than 60 days
before a redemption date, an Officers’ Certificate setting forth:




     (1) the clause of this Indenture pursuant to which the redemption shall occur;




     (2) the redemption date;




     (3) the principal amount of Notes to be redeemed; and




     (4) the redemption price.



Section 3.02 Selection of Notes to Be Redeemed.




     If less than all of the Notes are to be redeemed at any time, the Trustee will select Notes
for redemption on a pro rata basis (or, in the case of Notes issued in global form pursuant to
Article 2 hereof,



38









 




based on a method that most nearly approximates a pro rata selection as the Trustee deems fair
and appropriate) unless otherwise required by law or applicable stock exchange or depositary
requirements.




     In the event of partial redemption, the particular Notes to be redeemed will be selected,
unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Notes not previously called for redemption.



     The Trustee will promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of Notes selected will be in amounts of $2,000 or whole multiples of
$1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder shall be redeemed. Except as provided in
the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.



Section 3.03 Notice of Redemption.




     Subject to the provisions of Section 3.07 hereof, at least 30 days but not more than 60 days
before a redemption date, the Company will mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its registered address,
except that redemption notices may be mailed more than 60 days prior to a redemption date if the
notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture pursuant to Articles 8 or 11 hereof.



     The notice will identify the Notes to be redeemed and will state:




     (1) the redemption date;




     (2) the redemption price;




     (3) if any Note to be redeemed in part only, the portion of the principal amount of
such Note to be redeemed and that, after the redemption date upon surrender of such Note, a
new Note or Notes in principal amount equal to the unredeemed portion will be issued in the
name of the Holder of such Notes upon cancellation of the original Note;




     (4) the name and address of the Paying Agent;




     (5) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;




     (6) that, unless the Company defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date;




     (7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and




     (8) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.



     At the Company’s request, the Trustee will give the notice of redemption in the Company’s name
and at its expense; provided, however, that the Company has delivered to the Trustee, at least 35
days



39









 




prior to the redemption date (unless a shorter time is acceptable to the Trustee), an
Officers’ Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.




Section 3.04 Effect of Notice of Redemption.




     Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional.



Section 3.05 Deposit of Redemption or Purchase Price.




     On or before the redemption or purchase date, the Company will deposit with the Trustee or
with the Paying Agent money sufficient to pay the redemption or purchase price of, accrued interest
and Special Interest, if any, on all Notes to be redeemed or purchased on that date. The Trustee
or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase
price of, accrued interest and Special Interest, if any, on all Notes to be redeemed or purchased.



     If the Company complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes
called for redemption or purchase. If a Note is redeemed or purchased on or after an interest
record date but on or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is not so paid upon
surrender for redemption or purchase because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or
purchase date until such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.



Section 3.06 Notes Redeemed or Purchased in Part.




     Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and,
upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered.



Section 3.07 Optional Redemption.




     (a) At any time prior to December 15, 2012, the Company may on any one or more occasions
redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture, upon not
less than 30 nor more than 60 days’ notice, at a redemption price equal to 108.0% of the principal
amount of the Notes redeemed, plus accrued and unpaid interest and Special Interest, if any, to the
date of redemption (subject to the rights of Holders of Notes on the relevant record date to
receive interest on the relevant interest payment date) with the net cash proceeds of an Equity
Offering by the Company; provided that:




     (1) at least 65% of the aggregate principal amount of Notes originally issued under
this Indenture (excluding Notes held by the Company and its Subsidiaries) remains
outstanding immediately after the occurrence of such redemption; and



40









 






     (2) the redemption occurs within 90 days of the date of the closing of such Equity
Offering.



     (b) At any time prior to December 15, 2012, the Company may on any one or more occasions
redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice, at a
redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable
Premium as of, and accrued and unpaid interest and Special Interest, if any, to the applicable date
of redemption, subject to the rights of Holders on the relevant record date to receive interest due
on the relevant interest payment date.



     (c) Except pursuant to the preceding paragraphs, the Notes will not be redeemable at the
Company’s option prior to December 15, 2012.



     (d) On or after December 15, 2012, the Company may on any one or more occasions redeem all or
a part of the Notes, upon not less than 30 nor more than 60 days’ notice, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest
and Special Interest, if any, on the Notes redeemed, to the applicable redemption date, if redeemed
during the twelve-month period beginning on December 15 of the years indicated below, subject to
the rights of Holders on the relevant record date to receive interest on the relevant interest
payment date:



	 	 	 	 	 
	Year	 	Percentage
	2012
	 	 	104.000	%
	2013 and thereafter
	 	 	100.000	%






     Unless the Company defaults in the payment of the redemption price, interest will cease to
accrue on the Notes or portions thereof called for redemption on the applicable redemption date.



     (e) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.



Section 3.08 Escrow of Proceeds; Special Mandatory Redemption.




     In addition to any payments required by Sections 4.10 and 4.15 hereof, if the completion of
the Merger does not occur on or prior to May 4, 2010 (the “Deadline”), the Company shall redeem all
and not less than all of the Notes then outstanding, upon not less than 3 business days’ notice, at
a redemption price equal to 101% of the gross proceeds of the Notes, plus accrued interest and
unpaid to, but not including, the redemption date. If the completion of the Merger occurs prior to
the Deadline, upon the Escrow Agent’s receipt of an officer’s certificate in the form set forth in
the Escrow Agreement, all amounts held in the escrow account pursuant to the Escrow Agreement will
be released to the Company on the date of the completion of the Merger. The Company has the option
to redeem the Notes prior to the Deadline on the same terms as set forth in this Section 3.08.
Upon completion of the Merger, the provisions of this Section 3.08 will cease to apply.



Section 3.09 Offer to Purchase by Application of Excess Proceeds.




     In the event that, pursuant to Section 4.10 hereof, the Company is required to commence an
offer to all Holders to purchase Notes (an “Asset Sale Offer”), it will follow the procedures
specified below.



     The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that
is pari passu with the Notes containing provisions similar to those set forth in this Indenture
with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets. The
Asset Sale Offer will



41









 




remain open for a period of at least 20 Business Days following its commencement and not more
than 30 Business Days, except to the extent that a longer period is required by applicable law (the
“Offer Period”). No later than three Business Days after the termination of the Offer Period (the
“Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase
of Notes and such other pari passu Indebtedness (on a pro rata basis based on the principal amount
of Notes and such other pari passu Indebtedness surrendered, if applicable) or, if less than the
Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest
payments are made.




     If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest and Special Interest, if any, will be paid
to the Person in whose name a Note is registered at the close of business on such record date, and
no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.



     Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a
notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain
all instructions and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:




     (1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section
4.10 hereof and the length of time the Asset Sale Offer will remain open;




     (2) the Offer Amount, the purchase price and the Purchase Date;




     (3) that any Note not tendered or accepted for payment will continue to accrue
interest;




     (4) that, unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase
Date;




     (5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in denominations of $2,000 or an integral multiple of $1,000
in excess thereof;




     (6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will
be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the
Company, a Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;




     (7) that Holders will be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note purchased;




     (8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness
surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes
and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal
amount of Notes and such other pari passu Indebtedness surrendered (with such



42









 






adjustments as may be deemed appropriate by the Company so that only Notes in
denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be
purchased); and




     (9) that Holders whose Notes were purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).



     On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on
a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of this Section 3.09. The Company, the
Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than
five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and
the Company will promptly issue a new Note, and the Trustee, upon written request from the Company,
will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to
such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof.
The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.



     Other than as specifically provided in this Section 3.09, any purchase pursuant to this
Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.



ARTICLE 4

COVENANTS




Section 4.01 Payment of Notes.




     The Company will pay or cause to be paid the principal of, premium on, if any, interest and
Special Interest, if any, on, the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, interest and Special Interest, if any, will be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00
a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and interest, if any, then
due. The Company will pay all Special Interest, if any, in the same manner on the dates and in the
amounts set forth in the Registration Rights Agreement.



     The Company will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Special Interest, if any (without regard to
any applicable grace period), at the same rate to the extent lawful.



Section 4.02 Maintenance of Office or Agency.




     The Company will maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company fails to maintain any such
required office or agency or



43









 




fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee.




     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or rescission will in any
manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.



     The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.03 hereof.



Section 4.03 Reports.




     (a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company will furnish to the Holders of the Notes or cause the Trustee to furnish
to the Holders of Notes (or file with the SEC for public availability), within 15 days after the
time periods specified in the SEC’s rules and regulations (after giving effect to any extensions
pursuant to Rule 12b-25 or any successor rule or rules thereto):




     (1) all quarterly and annual reports that would be required to be filed with the SEC on
Forms 10-Q and 10-K if the Company were required to file reports, including a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and, with respect
to the annual information only, a report thereon by the Company’s certified independent
accountants; and




     (2) all current reports that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports.



     All such reports will be prepared in all material respects in accordance with all of the rules
and regulations applicable to such reports. In addition, the Company will file a copy of each of
the reports referred to in clauses (1) and (2) above with the SEC for public availability within
the time periods specified in the rules and regulations applicable to such reports (unless the SEC
will not accept such a filing) and will post the reports on its website within those time periods.
The Company will at all times comply with TIA §314(a).



     If, at any time after consummation of the Exchange Offer contemplated by the Registration
Rights Agreement, the Company is no longer subject to the periodic reporting requirements of the
Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in
the preceding paragraphs with the SEC within the time periods specified above unless the SEC will
not accept such a filing. The Company will not take any action for the purpose of causing the SEC
not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the
Company’s filings for any reason, the Company will post the reports referred to in the preceding
paragraph on its website within the time periods that would apply if the Company were required to
file those reports with the SEC.



     (b) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then
the Company shall disclose in Management’s Discussion and Analysis of Financial Condition and
Results of Operations revenues for the applicable period and assets of the applicable period then
ended of the Unrestricted Subsidiaries of the Company.



44









 





     (c) For so long as any Notes remain outstanding, if at any time they are not required to file
with the SEC the reports required by paragraphs (a) and (b) of this Section 4.03, the Company and
the Guarantors will furnish to the Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.



Section 4.04 Compliance Certificate.




     (a) The Company and each Guarantor (to the extent that such Guarantor is so required under the
TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or observance of any
of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has
occurred, describing all such Defaults or Events of Default of which he or she may have knowledge
and what action the Company is taking or proposes to take with respect thereto).



     (b) So long as any of the Notes are outstanding, the Company will deliver to the Trustee,
forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.



Section 4.05 Taxes.




     The Company will pay or discharge or cause to be paid or discharged, prior to delinquency, all
material taxes, assessments, and governmental levies imposed on the Company or any Restricted
Subsidiary, except such as are contested in good faith and by appropriate proceedings or where the
failure to effect such payment is not adverse in any material respect to the Holders of the Notes.



Section 4.06 Stay, Extension and Usury Laws.




     The Company and each of the Guarantors covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law has been enacted.



Section 4.07 Restricted Payments.




     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly:




     (1) declare or pay any dividend or make any other payment or distribution on account of
the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving the Company
or any of its Restricted Subsidiaries) or to the direct or indirect holders of the




45












 






Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as
such (other than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company and dividends or distributions payable to the Company or
a Restricted Subsidiary of the Company);




     (2) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Company) any Equity
Interests of the Company;




     (3) make any payment or prepayment of principal, interest or premium, if any, or
purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the
Company or any Guarantor that is contractually subordinated to the Notes or to any Note
Guarantee (excluding any intercompany Indebtedness between or among the Company and any of
its Restricted Subsidiaries) prior to scheduled maturity, scheduled payment, scheduled
repayment or scheduled sinking fund thereof (except for any purchase, redemption or
defeasance made in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of such
purchase, redemption or defeasance); or




     (4) make any Restricted Investment (all such payments and other actions set forth in
these clauses (1) through (4) above being collectively referred to as “Restricted
Payments”),




     unless, at the time of and after giving effect to such Restricted Payment:




     (1) no Default or Event of Default has occurred and is continuing or would occur as a
consequence of such Restricted Payment;




     (2) the Company would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a)
hereof; and




     (3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries since the date of this
Indenture (excluding Restricted Payments permitted by clauses (2), (3), (4), (6), (7), (8),
(9), (10) or (12) of paragraph (b) of this Section 4.07), is less than the sum, without
duplication, of:




     (A) 50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from the beginning of the first fiscal quarter commencing
after the date of this Indenture to the end of the Company’s most recently ended
fiscal quarter for which internal financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income for such period is a
deficit, less 100% of such deficit); plus




     (B) 100% of the aggregate net proceeds, including Cash Equivalents and the Fair
Market Value of the equity of a Person or assets used in or constituting a Permitted
Business (so long as such equity or assets are used by or become a Restricted
Subsidiary) received by the Company since the date of this Indenture (other than in
connection with the Merger) as a contribution to its common equity capital or from
the issue or sale of Qualifying Equity Interests of the Company or from the issue or
sale of convertible or exchangeable Disqualified Stock of the Company or convertible
or exchangeable debt



46









 






securities of the Company or a Guarantor, in each case to the extent that (a)
such Disqualified Stock or securities have been converted into or exchanged for such
Qualifying Equity Interests of the Company or (b) the amount of Indebtedness
represented by such Disqualified Stock or securities has been reduced upon such
conversion or exchange for Qualifying Equity Interests of the Company (in each case
other than Qualifying Equity Interests and convertible or exchangeable Disqualified
Stock or debt securities sold to a Subsidiary of the Company); plus




     (C) to the extent that any Restricted Investment that was made after the date
of this Indenture is (a) sold for cash or otherwise cancelled, liquidated or repaid
for cash, or (b) made in an entity that subsequently becomes a Restricted Subsidiary
of the Company that is a Guarantor, the return of capital with respect to such
Restricted Investment, less the cost of disposition (if any); plus




     (D) to the extent that any Unrestricted Subsidiary of the Company designated as
such after the date of this Indenture is redesignated as a Restricted Subsidiary
after the date of this Indenture, the net reduction of Investments (valued as
provided in the definition of “Investment”) with respect to such Unrestricted
Subsidiary; plus




     (E) 100% of any dividends received in cash by the Company or a Restricted
Subsidiary after the date of this Indenture from an Unrestricted Subsidiary of the
Company, to the extent that such dividends were not otherwise included in the
Consolidated Net Income of the Company for such period.




(b) The provisions of Section 4.07(a) hereof will not prohibit:




     (1) the payment of any dividend or the consummation of any irrevocable redemption
within 60 days after the date of declaration of the dividend or giving of the redemption
notice, as the case may be, if at the date of declaration or notice, the dividend or
redemption payment would have complied with the provisions of this Indenture;




     (2) the making of any Restricted Payment in exchange for, or out of or with the
proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company)
of, Equity Interests of the Company (other than Disqualified Stock) or from the
substantially concurrent contribution of common equity capital to the Company; provided that
the amount of any such proceeds that are utilized for any such Restricted Payment will not
be considered to be net proceeds of Qualifying Equity Interests for purposes of Section
4.07(a)(3)(B);




     (3) the payment of any dividend (or, in the case of any partnership or limited
liability company, any similar distribution) by a Restricted Subsidiary of the Company to
the holders of its Equity Interests on a pro rata basis;




     (4) the repurchase, redemption, defeasance or other acquisition or retirement for value
of Indebtedness of the Company or any Guarantor that is contractually subordinated to the
Notes or to any Note Guarantee with the net cash proceeds from a substantially concurrent
incurrence of Permitted Refinancing Indebtedness;




     (5) so long as no Default or Event of Default has occurred and is continuing, the
repurchase, redemption or other acquisition or retirement for value of any Equity Interests
of the Company or any Restricted Subsidiary of the Company held by any current or former
officer, director or employee of the Company or any of its Restricted Subsidiaries upon
their death,



47









 






disability, retirement, severance or termination of employment or service; provided
that the aggregate cash price paid for all such repurchased, redeemed, acquired or retired
Equity Interests may not exceed $10.0 million in any fiscal year;




     (6) the repurchase of Equity Interests deemed to occur upon the exercise of stock
options to the extent such Equity Interests represent a portion of the exercise price of
those stock options, and repurchases of Equity Interests deemed to occur upon the
withholding of a portion of the Equity Interests granted or awarded to a current or former
officer, director, employee or consultant to pay for the taxes payable by such Person upon
such grant or award (or upon vesting thereof);




     (7) so long as no Default or Event of Default has occurred and is continuing, the
declaration and payment of regularly scheduled or accrued dividends to holders of any class
or series of Disqualified Stock of the Company or any preferred stock of any Restricted
Subsidiary of the Company issued on or after the date of this Indenture in accordance with
the Fixed Charge Coverage Ratio test described in Section 4.09(a) hereof;




     (8) payments of cash, dividends, distributions, advances or other Restricted Payments
by the Company or any of its Restricted Subsidiaries to allow the payment of cash in lieu of
the issuance of fractional shares upon (i) the exercise of options or warrants or (ii) the
conversion or exchange of Capital Stock of any such Person;




     (9) so long as no Default or Event of Default has occurred and is continuing, other
Restricted Payments in an aggregate amount not to exceed $50.0 million;




     (10) any payments made in connection with the Merger pursuant to the Merger Agreement;




     (11) the repurchase, redemption or other acquisition or retirement for value of any
Indebtedness upon the occurrence of a change of control under such Indebtedness, so long as
the Company shall have complied with the requirements of Section 4.15 hereunder; and




     (12) the repurchase of Capital Stock of the Company pursuant to the stock repurchase
program in effect on the date of this Indenture of up to $30.0 million.



     The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the
date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued
by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The Fair Market Value of any assets or securities that are required to be valued by this
Section 4.07 will be determined by the Board of Directors of the Company whose resolution with
respect thereto will be delivered to the Trustee.




			
	Section 4.08	 	Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.





     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:




     (1) pay dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries or with respect to any other interest or participation



48









 






in, or measured by, its profits, or pay any indebtedness owed to the Company or any of
its Restricted Subsidiaries;




     (2) make loans or advances to the Company or any of its Restricted Subsidiaries; or




     (3) sell, lease or transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries.



     (b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions
existing under or by reason of:




     (1) agreements governing (a) Existing Indebtedness as in effect on the date of this
Indenture and any amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings of agreements governing such Existing Indebtedness;
provided that the amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings are not materially more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions than those contained in
those agreements on the date of this Indenture and (b) any other secured Indebtedness
permitted by this Indenture that limits the right of the debtor thereunder to dispose of the
assets securing such Indebtedness;




     (2) this Indenture, the Notes and the Note Guarantees;




     (3) agreements governing other Indebtedness permitted to be incurred under Section 4.09
hereof and any amendments, restatements, modifications, renewals, supplements, refundings,
replacements or refinancings of those agreements; provided that the restrictions therein are
not materially more restrictive, taken as a whole, than those contained in this Indenture,
the Notes and the Note Guarantees;




     (4) applicable law, rule, regulation or order;




     (5) any encumbrance or restriction with respect to any Person or property or assets of
such Person acquired by the Company or any of its Restricted Subsidiaries as in effect at
the time of such acquisition, which encumbrance or restriction was not incurred in
connection with or in contemplation of such acquisition, and which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired; provided that,
in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture
to be incurred;




     (6) customary non-assignment provisions in contracts and licenses entered into in the
ordinary course of business;




     (7) purchase money obligations for property acquired in the ordinary course of business
and Capital Lease Obligations that impose restrictions on the property purchased or leased
of the nature described in clause (3) of Section 4.08(a) hereof;




     (8) any agreement for the sale or other disposition of a Subsidiary or all or
substantially all of the assets thereof that restricts distributions by that Subsidiary or
sales or transfers of assets pending its sale or other disposition;




     (9) agreements governing Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Permitted Refinancing Indebtedness
are



49









 






not materially more restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced;




     (10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that
limit the right of the debtor to dispose of the assets subject to such Liens;




     (11) provisions limiting the disposition or distribution of assets or property in joint
venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements,
licenses, sublicenses, leases, subleases and other similar agreements (including agreements
entered into in connection with a Restricted Investment) entered into in the ordinary course
of business;




     (12) restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;




     (13) restrictions under customary provisions in partnership agreements, limited
liability company organizational or governance documents, joint venture agreements,
corporate charters, stockholders’ agreements and other similar agreements and documents on
the transfer of ownership interests in such partnership, limited liability company, joint
venture or similar Person.




			
	Section 4.09	 	Incurrence of Indebtedness and Issuance of Preferred Stock.





     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness
(including Acquired Debt), and the Company will not issue any Disqualified Stock and will not
permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided that the
Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the
Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred stock, if the Fixed
Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case
may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or
the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning
of such four-quarter period.



     (b) The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the
following items of Indebtedness (collectively, “Permitted Debt”):




     (1) the incurrence by the Company and any Restricted Subsidiary of Indebtedness and
letters of credit under Credit Facilities in an aggregate principal amount (with revolving
credit Indebtedness and letters of credit being deemed to be incurred at the time entered
into and to have a principal amount equal to the maximum potential liability of the Company
and its Restricted Subsidiaries thereunder) not to exceed the amount such that the Credit
Facility Leverage Ratio as of the date on which such Indebtedness is incurred would have
been no greater than 1.75 to 1.0 less the aggregate amount of all Net Proceeds of Asset
Sales applied by the Company or any of its Restricted Subsidiaries since the date of this
Indenture to repay any term Indebtedness under a Credit Facility or to repay any revolving
credit Indebtedness under a Credit Facility to the extent accompanied by a corresponding
commitment reduction thereunder pursuant to Section 4.10 hereunder;




50












 






     (2) the incurrence by the Company and its Restricted Subsidiaries of the Existing
Indebtedness;




     (3) the incurrence by the Company and the Guarantors of Indebtedness represented by the
Notes and the related Note Guarantees to be issued on the date of this Indenture and the
Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration
Rights Agreement;




     (4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, incurred for the purpose of financing all or any part of the purchase price or
cost of design, construction, installation or improvement of property, plant or equipment
used in the business of the Company or any of its Restricted Subsidiaries, in an aggregate
principal amount, including all Permitted Refinancing Indebtedness incurred to renew,
refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this
clause (4), not to exceed the greater of $25.0 million and 2.5% of Total Assets at any time
outstanding;




     (5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew,
refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a)
hereof or clauses (2), (3), (4), (5), (12), (13) or (15) of this Section 4.09(b);




     (6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided
that:




     (A) if the Company or any Guarantor is the obligor on such Indebtedness and the
payee is not the Company or a Guarantor, such Indebtedness must be unsecured and
expressly subordinated to the prior payment in full in cash of all Obligations then
due with respect to the Notes, in the case of the Company, or the Note Guarantee, in
the case of a Guarantor; and




     (B) (1) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (2) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted Subsidiary
of the Company,




will be deemed, in each case, to constitute an incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be, that was not permitted by this
clause (6);




     (7) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of shares of preferred stock; provided that:




     (A) any subsequent issuance or transfer of Equity Interests that results in any
such preferred stock being held by a Person other than the Company or a Restricted
Subsidiary of the Company; and




     (B) any sale or other transfer of any such preferred stock to a Person that is
not either the Company or a Restricted Subsidiary of the Company,



51









 






will be deemed, in each case, to constitute an issuance of such preferred stock by such
Restricted Subsidiary that was not permitted by this clause (7);




     (8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations in the ordinary course of business;




     (9) the guarantee by the Company or any Restricted Subsidiary of Indebtedness of the
Company or a Restricted Subsidiary to the extent that the guaranteed Indebtedness was
permitted to be incurred by another provision of this Section 4.09; provided that if the
Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the
guarantee must be subordinated or pari passu, as applicable, to the same extent as the
Indebtedness being guaranteed;




     (10) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in respect of workers’ compensation claims, health, disability or other
employee benefits or property, casualty or liability insurance, self-insurance obligations,
bankers’ acceptances, performance and surety bonds and similar obligations in the ordinary
course of business;




     (11) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient funds, so long as such
Indebtedness is covered or extinguished within five Business Days;




     (12) the incurrence by Foreign Subsidiaries of Indebtedness in an aggregate principal
amount at any time outstanding pursuant to this clause (12), including all Permitted
Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge
any Indebtedness incurred pursuant to this clause (12), not to exceed $25.0 million (or the
equivalent thereof, measured at the time of each incurrence, in the applicable foreign
currency);




     (13) the incurrence by the Company of Indebtedness in an aggregate principal amount (or
accreted value, as applicable) at any time outstanding, including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any
Indebtedness incurred pursuant to this clause (13), not to exceed $50.0 million;




     (14) the incurrence of Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar
obligations, in each case incurred or assumed in connection with the acquisition or
disposition of any business, assets or Subsidiary permitted by this Indenture; and




     (15) the incurrence of Acquired Debt by the Company or a Restricted Subsidiary in
connection with the acquisition of (a) Investments permitted by clause (3) in the definition
of “Permitted Investments”, (b) all or substantially all of the assets of such a Person or
line of business, division or business unit within the Permitted Business or (c) any other
Permitted Business assets; provided that such Acquired Debt is not incurred in connection
with, or in contemplation of, such transaction; provided, further, on the date of the
incurrence of such Acquired Debt, after giving effect to the incurrence thereof and
otherwise determined on a pro forma basis in accordance with the provisions set forth in the
definition of “Fixed Charge Coverage Ratio”, the Fixed Charge Coverage Ratio would be the
same as or greater than the Fixed Charge Coverage Ratio immediately prior to the incurrence
of such Indebtedness (including Acquired Debt).



52









 





     The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness
(including Permitted Debt) that is contractually subordinated in right of payment to any other
Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually
subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially
identical terms; provided, however, that no Indebtedness will be deemed to be contractually
subordinated in right of payment to any other Indebtedness solely by virtue of being unsecured or
by virtue of being secured on a junior priority basis.



     For purposes of determining compliance with this Section 4.09, in the event that an item of
Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in
clauses (1) through (15) above, or is entitled to be incurred pursuant to Section 4.09(a) hereof,
the Company will be permitted to classify such item of Indebtedness on the date of its incurrence,
or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with
this Section 4.09. The accrual of interest or preferred stock dividends, the accretion or
amortization of original issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, the reclassification of preferred stock as
Indebtedness due to a change in accounting principles and the payment of dividends on preferred
stock or Disqualified Stock in the form of additional shares of the same class of preferred stock
or Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of
preferred stock or Disqualified Stock for purposes of this Section 4.09; provided, in each such
case, that the amount thereof is included in Fixed Charges of the Company as accrued. For purposes
of determining compliance with any U.S. dollar-denominated restriction on the incurrence of
Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency shall be utilized, calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was incurred. Notwithstanding any other provision of this Section 4.09,
the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant
to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in
exchange rates or currency values.



     The amount of any Indebtedness outstanding as of any date will be:




     (1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with
original issue discount;




     (2) the principal amount of the Indebtedness, in the case of any other Indebtedness;
and




     (3) in respect of Indebtedness of another Person secured by a Lien on the assets of the
specified Person, the lesser of:




     (A) the Fair Market Value of such assets at the date of determination; and




     (B) the amount of the Indebtedness of the other Person.



Section 4.10 Asset Sales.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an
Asset Sale unless:




     (1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market Value
(measured as of the date of the definitive agreement with respect to such Asset Sale) of the
assets or Equity



53









 






Interests issued or sold or otherwise disposed of; provided that consideration received
from an insurer or a governmental authority in the event of loss, damage, destruction or
condemnation shall not be subject to the requirements set forth in this clause (1); and




     (2) at least 75% of the consideration received in the Asset Sale by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this
provision, each of the following will be deemed to be cash:




     (A) any liabilities of the Company or any Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to the
Notes or any Note Guarantee) that are assumed by the transferee of any such assets;




     (B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary into Cash Equivalents within 180 days after the
consummation of such Asset Sale, to the extent of the Cash Equivalents received in
that conversion;




     (C) any Designated Noncash Consideration received by the Company or any
Restricted Subsidiary in such Asset Sale having a Fair Market Value, taken together
with all other Designated Noncash Consideration received pursuant to this clause (c)
that is at the time outstanding, not to exceed $25.0 million at the time of receipt
of such Designated Noncash Consideration, with the Fair Market Value of each item of
Designated Noncash Consideration being measured at the time received without giving
effect to subsequent changes in value; and




     (D) any stock or assets of the kind referred to in clauses (2) or (4) of the
next paragraph of this Section 4.10.



     Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the
applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:




     (1) to repay (a) Indebtedness and other Obligations under a Credit Facility, (b) other
Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted
Subsidiary that is secured by a Lien permitted by the definition of “Permitted Liens”, (c)
Indebtedness of a Restricted Subsidiary that is not a Guarantor and (d) Indebtedness ranking
pari passu with the Notes, and, in each case, if the Indebtedness repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect thereto;




     (2) to acquire a controlling interest in another Permitted Business, if, after giving
effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a
Restricted Subsidiary of the Company;




     (3) to make a capital expenditure; or




     (4) to acquire other assets that are not classified as current assets under GAAP and
that are used or useful in a Permitted Business.



     Pending the final application of any Net Proceeds, the Company (or the applicable Restricted
Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest or apply the Net
Proceeds in any manner that is not prohibited by this Indenture.



54









 





     Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second
paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of
Excess Proceeds exceeds $25.0 million, within 30 days thereof, the Company will make an Asset Sale
Offer to all Holders of Notes and, at the Company’s option, all holders of other Indebtedness that
is pari passu with the Notes containing provisions similar to those set forth in this Indenture
with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in
accordance with Section 3.09 hereof to purchase, prepay or redeem the maximum principal amount of
Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the
amount of all fees and expenses, including premiums, incurred in connection therewith) that may be
purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer
will be equal to 100% of the principal amount, plus accrued and unpaid interest and Special
Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of
Holders of Notes on the relevant record date to receive interest due on the relevant interest
payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an
Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu
Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale
Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari
passu Indebtedness to be purchased on a pro rata basis, based on the amounts tendered or required
to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof,
will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be
reset at zero.



     The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations under Section 3.09
hereof or this Section 4.10 by virtue of such compliance.



Section 4.11 Transactions with Affiliates.




     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any
payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of
the Company (each, an “Affiliate Transaction”) involving aggregate payments or consideration in
excess of $1.0 million, unless:




     (1) the Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated Person; and




     (2) the Company delivers to the Trustee:




     (A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, a
resolution of the Board of Directors of the Company set forth in an Officers’
Certificate certifying that such Affiliate Transaction complies with clause (1) of
this Section 4.11(a) and that such Affiliate Transaction has been approved by a
majority of the disinterested members of the Board of Directors of the Company; and



55









 






     (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $15.0 million, an
opinion as to the fairness to the Company or such Subsidiary of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.



     (b) The following items will not be deemed to be Affiliate Transactions and, therefore, will
not be subject to the provisions of Section 4.11(a) hereof:




     (1) any employment agreement, employee benefit plan, officer or director
indemnification agreement or any similar arrangement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business and payments pursuant
thereto;




     (2) transactions between or among the Company and/or its Restricted Subsidiaries;




     (3) transactions with a Person (other than an Unrestricted Subsidiary of the Company)
that is an Affiliate of the Company solely because the Company owns, directly or through a
Restricted Subsidiary, an Investment in, or controls, such Person;




     (4) payment of reasonable and customary fees and reimbursements of expenses (pursuant
to indemnity arrangements or otherwise) or other compensation (in cash or otherwise) of
officers, directors, employees or consultants of the Company or any of its Restricted
Subsidiaries;




     (5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to
Affiliates of the Company;




     (6) Permitted Investments and Restricted Payments that do not violate Section 4.07
hereof;




     (7) loans or advances to employees in the ordinary course of business not to exceed
$5.0 million in the aggregate at any one time outstanding;




     (8) the performance of any agreement as in effect on the date of this Indenture or the
consummation of any transaction contemplated thereby (including pursuant to any amendment
thereto as long as any such amendment is not materially adversely disadvantageous to the
Holders of the Notes);




     (9) any transaction with an Affiliate where the only consideration paid by the Company
or any Restricted Subsidiary is Equity Interests (other than Disqualified Stock) (and any
payments of cash in lieu of delivering fractional shares in connection therewith); and




     (10) any transaction with a joint venture in which the Company or a Restricted
Subsidiary is a joint venturer and no other Affiliate is a joint venturer, or with any
Subsidiary thereof or other joint venturer therein, pursuant to the joint venture agreement
or related agreements for such joint venture, including any transfers of any equity or
ownership interests in any such joint venture to any other joint venturer therein pursuant
to the performance or exercise of any rights or obligations to make such transfer under the
terms of the agreements governing such joint venture.




56












 





Section 4.12 Liens.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume or suffer to exist any Lien of any kind securing Indebtedness or
trade payables on any asset now owned or hereafter acquired, except Permitted Liens.



Section 4.13 Business Activities.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, engage in any
business other than Permitted Businesses, except to such extent as would not be material to the
Company and its Restricted Subsidiaries taken as a whole.



Section 4.14 Corporate Existence.




     Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect:




     (1) its corporate existence, and the corporate, partnership or other existence of each
of the Guarantors, in accordance with the respective organizational documents (as the same
may be amended from time to time) of the Company or any such Guarantor; and




     (2) the material rights (charter and statutory) and material franchises of the Company
and the Guarantors; provided, however, that the Company shall not be required to preserve
any such right or franchise, or the corporate, partnership or other existence of any of the
Guarantors, if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its Subsidiaries, taken
as a whole, and that the loss thereof is not adverse in any material respect to the Holders
of the Notes.



Section 4.15 Offer to Repurchase Upon Change of Control.




     (a) Upon the occurrence of a Change of Control, the Company will make an offer (a “Change of
Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to
101% of the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest and
Special Interest, if any, on the Notes repurchased to the date of purchase, subject to the rights
of Holders of Notes on the relevant record date to receive interest due on the relevant interest
payment date (the “Change of Control Payment”). Within 30 days following any Change of Control, the
Company will mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and stating:




     (1) that the Change of Control Offer is being made pursuant to this Section 4.15 and
that all Notes tendered will be accepted for payment;




     (2) the purchase price and the purchase date, which shall be no earlier than 10 days
and no later than 60 days from the date such notice is mailed (the “Change of Control
Payment Date”);




     (3) that any Note not tendered will continue to accrue interest;




     (4) that, unless the Company defaults in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue
interest after the Change of Control Payment Date;



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     (5) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender the Notes, with the form entitled “Option of Holder to
Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the
Paying Agent at the address specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control Payment Date;




     (6) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes purchased; and




     (7) that Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of
$1,000 in excess thereof.



     The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change in Control. To
the extent that the provisions of any securities laws or regulations conflict with the provisions
of this Section 4.15, the Company will comply with the applicable securities laws and regulations
and will not be deemed to have breached its obligations under this Section 4.15 by virtue of such
compliance.



     (b) On the Change of Control Payment Date, the Company will, to the extent lawful:




     (1) accept for payment all Notes or portions of Notes properly tendered pursuant to the
Change of Control Offer;




     (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions of Notes properly tendered; and




     (3) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company.



     The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of
Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any’ provided that each such new Note shall be in
denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. The Company will
publicly announce the results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.



     (c) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be
required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.15 and purchases all Notes properly tendered and not
withdrawn under the Change of Control Offer, or (2) notice of redemption has been given pursuant to
Section 3.07 hereof, unless and until there is a default in payment of the applicable redemption
price.



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     (d) Notwithstanding anything to the contrary contained herein, a Change of Control Offer may
be made in advance of a Change of Control, conditioned upon the consummation of such Change of
Control, if a definitive agreement is in place for the Change of Control at the time the Change of
Control Offer is made.



Section 4.16 Additional Note Guarantees.




     If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic
Subsidiary after the date of this Indenture, then the Company will cause that newly acquired or
created Domestic Subsidiary to provide a Note Guarantee pursuant to a supplemental indenture in
form and substance satisfactory to the Trustee and deliver an Opinion of Counsel to the Trustee
within 30 days of the date on which it was acquired or created; provided, that any Domestic
Subsidiary that constitutes an Immaterial Subsidiary need not become a Guarantor until such time as
it ceases to be an Immaterial Subsidiary. The form of such supplemental indenture is attached as
Exhibit F hereto.



Section 4.17 Designation of Restricted and Unrestricted Subsidiaries.




     The Board of Directors of the Company may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary
is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding
Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as
Unrestricted will be deemed to be an Investment made as of the time of the designation and will
reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more
clauses of the definition of Permitted Investments, as determined by the Company. That designation
will only be permitted if the Investment would be permitted at that time and if the Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.



     Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced
to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of
Directors giving effect to such designation and an Officers’ Certificate certifying that such
designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If,
at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of
this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a
Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to
be incurred as of such date under Section 4.09 hereof, the Company will be in default of such
covenant. The Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary of the Company; provided that such designation will be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be
permitted if (1) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro
forma basis as if such designation had occurred at the beginning of the applicable reference
period; and (2) no Default or Event of Default would be in existence following such designation.



Section 4.18 Changes in Covenants When Notes Rated Investment Grade.




     If on any day following the date of this Indenture:



     (a) the notes are rated Baa3 or better by Moody’s and BBB- or better by S&P (or, if either
such entity ceases to rate the notes for reasons outside of the control of the Company, the
equivalent investment grade credit rating from any other “nationally recognized statistical rating
organization”



59









 







within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company
as a replacement agency); and



     (b) no Default or Event of Default shall have occurred and be continuing,



     then, beginning on that day (the “Suspension Date”) and subject to the provisions of the
following paragraph, the requirements of Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.13, 4.17 and
5.01(4) (collectively, the “Suspended Covenants”) will be suspended.



     During any period that the foregoing sections have been suspended, the Company’s Board of
Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to
Section 4.17.



     Notwithstanding the foregoing, if the rating assigned by either such rating agency should
subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be
reinstituted as of and from the date of such rating decline (the “Reversion Date”), but only with
respect to events after the Reversion Date. The period of time between the Suspension Date and the
Reversion Date is referred to as the “Suspension Period”. Notwithstanding that the Suspended
Covenants may be reinstated, no Default will be deemed to have occurred as a result of a failure to
comply with such Suspended Covenants during the Suspension Period.



     Calculations made after the Reversion Date of the amount available to be made under Section
4.07 will be made as if such covenant had been in effect since the date of this Indenture.
Accordingly, Restricted Payments made during the Suspension Period will be deemed to have been
permitted but will reduce the amount available to be made as Restricted Payments under the first
paragraph of Section 4.07.



     On the Reversion Date, all Indebtedness incurred during the Suspension Period will be subject
to Section 4.09. To the extent such Indebtedness would not be so permitted to be incurred pursuant
to such covenant, such Indebtedness will be deemed to be Existing Indebtedness.



     Notwithstanding the foregoing, neither (1) the continued existence, after the Reversion Date,
of facts and circumstances or obligations that occurred, were incurred or otherwise came into
existence during a Suspension Period nor (2) the performance of any such obligations, shall
constitute a breach of any Suspended Covenant or cause a Default; provided that (i) the Company and
its Restricted Subsidiaries did not incur or otherwise cause such facts and circumstances or
obligations to exist in anticipation of a downgrade by Moody’s or S&P (as applicable) below Baa3 or
BBB-, respectively and (ii) the Company had a good faith belief that such incurrence or actions
would not result in such withdrawal or downgrade.



ARTICLE 5

SUCCESSORS




Section 5.01 Merger, Consolidation or Sale of Assets.




     The Company shall not, directly or indirectly: (1) consolidate or merge with or into another
Person (whether or not the Company is the surviving corporation); or (2) sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the properties or assets of the Company
and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another
Person, unless:




     (1) either:




     (A) the Company is the surviving corporation; or



60









 






     (B) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer, conveyance or
other disposition has been made is an entity organized or existing under the laws of
the United States, any state of the United States or the District of Columbia; and,
if such entity is not a corporation, a co-obligor of the Notes is a corporation
organized or existing under any such laws;




     (2) the Person formed by or surviving any such consolidation or merger (if other than
the Company) or the Person to which such sale, assignment, transfer, conveyance or other
disposition has been made assumes all the obligations of the Company under the Notes, this
Indenture and the Registration Rights Agreement pursuant to agreements reasonably
satisfactory to the Trustee;




     (3) immediately after such transaction, no Default or Event of Default exists; and




     (4) either:




     (A) the Company or the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment, transfer,
conveyance or other disposition has been made: would, on the date of such
transaction after giving pro forma effect thereto and any related financing
transactions as if the same had occurred at the beginning of the applicable
four-quarter period be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a)
hereof; or




     (B) or the Fixed Charge Coverage Ratio for the Company or the entity or Person
formed by or surviving such consolidation or merger, if other than the Company, or
to which such sale, assignment, transfer or other disposition shall have been made
would, immediately after giving pro forma effect thereto and any related financing
transactions as if the same had occurred at the beginning of the applicable
four-quarter period, not be less than such Fixed Charge Coverage Ratio for the
Company immediately prior to such transaction.



     In addition, the Company will not, directly or indirectly, lease all or substantially all of
the properties and assets of it and its Restricted Subsidiaries, taken as a whole, in one or more
related transactions, to any other Person. This Section 5.01 will not apply to any sale,
assignment, transfer, conveyance, lease or other disposition of assets between or among the Company
and its Restricted Subsidiaries. Clauses (3) and (4) of this Section 5.01 will not apply to (1)
any merger or consolidation of the Company with or into one of its Restricted Subsidiaries for any
purpose or (2) with or into an Affiliate solely for the purpose of reincorporating the Company in
another jurisdiction.



Section 5.02 Successor Corporation Substituted.




     Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the properties or assets of the Company in a
transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the
successor Person formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed
to, and be substituted for (so that from and after the date of such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture
referring to the “Company” shall refer instead to the successor Person and not to the Company), and
may exercise every right and power of the Company



61









 







under this Indenture with the same effect as if such successor Person had been named as the
Company herein; provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of, premium on, if any, interest and Special Interest, if any, on,
the Notes except in the case of a sale of all of the Company’s assets in a transaction that is
subject to, and that complies with the provisions of, Section 5.01 hereof.



ARTICLE 6

DEFAULTS AND REMEDIES




Section 6.01 Events of Default.




     Each of the following is an “Event of Default”:




     (1) default for 30 days in the payment when due of interest and Special Interest, if
any, on, the Notes;




     (2) default in the payment when due (at maturity, upon redemption, repurchase or
otherwise) of the principal of, or premium on, if any, the Notes;




     (3) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Section 5.01 hereof;




     (4) failure by the Company or any of its Restricted Subsidiaries for 30 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding, voting as a single class, to comply with the
provisions of Sections 4.10 or 4.15 hereof (other than a failure to repurchase notes
tendered pursuant to those Sections);




     (5) failure by the Company or any of its Restricted Subsidiaries for 60 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with any of the
other agreements in this Indenture;




     (6) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now
exists, or is created after the date of this Indenture, if that default:




     (A) is caused by a failure to pay principal of such Indebtedness (giving effect
to any applicable grace periods and extensions thereof) (a “Payment Default”); or




     (B) results in the acceleration of such Indebtedness prior to its express final
maturity,




and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $25.0 million
or more;



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     (7) failure by the Company or any of its Restricted Subsidiaries to pay final judgments
entered by a court or courts of competent jurisdiction aggregating in excess of $25.0
million, which judgments are not paid, discharged, stayed, satisfied, annulled or rescinded,
for a period of 60 days;




     (8) the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company at the same or similar time that,
taken together, would constitute a Significant Subsidiary pursuant to or within the meaning
of Bankruptcy Law:




     (A) commences a voluntary case,




     (B) consents to the entry of an order for relief against it in an involuntary
case,




     (C) consents to the appointment of a custodian of it or for all or
substantially all of its property,




     (D) makes a general assignment for the benefit of its creditors, or




     (E) generally is not paying its debts as they become due;




     (9) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:




     (A) is for relief against the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company at the same or similar time that, taken together, would constitute a
Significant Subsidiary in an involuntary case;




     (B) appoints a custodian of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company at the same or similar time that, taken together, would constitute a
Significant Subsidiary or for all or substantially all of the property of the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries of the Company at the same or similar time
that, taken together, would constitute a Significant Subsidiary; or




     (C) orders the liquidation of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company at the same or similar time that, taken together, would constitute a
Significant Subsidiary;




and the order or decree remains unstayed and in effect for 60 consecutive days; or




     (10) except as permitted by this Indenture, any Note Guarantee of a Significant
Subsidiary is held in any judicial proceeding to be unenforceable or invalid or ceases for
any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf
of any Guarantor, denies or disaffirms its obligations under its Note Guarantee.



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Section 6.02 Acceleration.




     In the case of an Event of Default specified in clause (8) or (9) of Section 6.01 hereof, with
respect to the Company, any Restricted Subsidiary of the Company that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company at the same or similar time that, taken
together, would constitute a Significant Subsidiary, all outstanding Notes will become due and
payable immediately without further action or notice. If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.



     The Holders of a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Trustee may, on behalf of all of the Holders of all the Notes, rescind an
acceleration or waive any existing Default or Event of Default and its consequences hereunder, if
the rescission would not conflict with any judgment or decree except a continuing Default or Event
of Default in the payment of principal of, premium on, if any, interest or Special Interest, if
any, on the Notes.



     Notwithstanding the foregoing, to the extent elected by the Company, the sole remedy for an
Event of Default relating to the failure to comply with the provisions of Section 4.03 hereof,
will, for the 365 days after the occurrence of such an Event of Default consist exclusively of the
right to receive additional interest on the Notes at an annual rate equal to 0.50% of the principal
amount of the Notes. This additional interest will be payable in the same manner and on the same
dates as the stated interest payable on the Notes. The additional interest will accrue on all
outstanding notes from, and including, the date on which an Event of Default relating to a failure
to comply with the reporting obligations in this Indenture first occurs to, but not including, the
365th day thereafter (or such earlier date on which the Event of Default relating to the reporting
obligations shall have been cured or waived). On such 365th day (or earlier, if an Event of
Default relating to the reporting obligations is cured or waived prior to such 365th day), such
additional interest will cease to accrue and the Notes will be subject to acceleration as provided
above. If the Company does not elect to pay additional interest during the continuance of such an
Event of Default, as applicable, in accordance with this paragraph, the Notes will be subject to
acceleration as provided above.



Section 6.03 Other Remedies.




     If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal of, premium on, if any, interest or Special Interest, if any,
on, the Notes or to enforce the performance of any provision of the Notes or this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.



Section 6.04 Waiver of Past Defaults.




     The Holders of a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Trustee may, on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of principal of, premium on, if any, interest or Special Interest, if any,
on, the Notes (including in connection with an offer to purchase); provided, however, that the
Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an
acceleration and its consequences,



64









 







including any related payment default that resulted from such acceleration. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.



Section 6.05 Control by Majority.




     Holders of a majority in aggregate principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power conferred on it. The Trustee may withhold from
Holders of the Notes notice of any Default or Event of Default if it determines that withholding
notice is in the Holders’ interest, except a Default or Event of Default specified in clauses (1)
or (2) of Section 6.01 hereto.



Section 6.06 Limitation on Suits.




     Except to enforce the right to receive payment of principal, premium, if any, interest or
Special Interest, if any, when due, no Holder of a Note may pursue any remedy with respect to this
Indenture or the Notes unless:




     (1) such Holder has previously given to the Trustee written notice that an Event of
Default is continuing;




     (2) Holders of at least 25% in aggregate principal amount of the then outstanding Notes
make a written request to the Trustee to pursue the remedy;




     (3) such Holder or Holders offer and, if requested, provide to the Trustee security or
indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;




     (4) the Trustee does not comply with such request within 60 days after receipt of the
request and the offer of security or indemnity; and




     (5) during such 60-day period, Holders of a majority in aggregate principal amount of
the then outstanding Notes do not give the Trustee a direction inconsistent with such
request.



     A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a
Note or to obtain a preference or priority over another Holder of a Note.



Section 6.07 Rights of Holders of Notes to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal of, premium on, if any, interest or Special Interest, if any, on, the
Note, on or after the respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such Holder.



Section 6.08 Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium on, if any, interest and Special
Interest, if any, remaining unpaid on, the Notes and interest on overdue principal and, to the
extent lawful, interest and



65









 







such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.



Section 6.09 Trustee May File Proofs of Claim.




     The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.



Section 6.10 Priorities.




     If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in
the following order:




     First: to the Trustee, its agents and attorneys for amounts due under Section 7.07
hereof, including payment of all compensation, expenses and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;




     Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, interest and Special Interest, if any, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for principal,
premium, if any, interest and Special Interest, if any, respectively; and




     Third: to the Company or to such party as a court of competent jurisdiction shall
direct.



     The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.



Section 6.11 Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in



66









 







the suit, having due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate principal
amount of the then outstanding Notes.



ARTICLE 7

TRUSTEE




Section 7.01 Duties of Trustee.




     (a) If an Event of Default has occurred and is continuing, the Trustee will exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
its exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such person’s own affairs.



     (b) Except during the continuance of an Event of Default:




     (1) the duties of the Trustee will be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee will examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.



     (c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:




     (1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;




     (2) the Trustee will not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and




     (3) the Trustee will not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.



     (d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.



     (e) No provision of this Indenture will require the Trustee to expend or risk its own funds or
incur any liability. The Trustee will be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless such Holder has offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or expense.



     (f) The Trustee will not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.



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Section 7.02 Rights of Trustee.




     (a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.



     (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.



     (c) The Trustee may act through its attorneys and agents and will not be responsible for the
misconduct or negligence of any agent appointed with due care.



     (d) The Trustee will not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within the rights or powers conferred upon it by this Indenture.



     (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company will be sufficient if signed by an Officer of the Company.



     (f) The Trustee will be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders unless such Holders have
offered to the Trustee reasonable indemnity or security satisfactory to it against the losses,
liabilities and expenses that might be incurred by it in compliance with such request or direction.



     (g) Except with respect to Section 4.01, the Trustee shall have no duty to inquire as to the
performance of the Company with respect to the covenants contained in Article 4. In addition, the
Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Default or
Event of Default occurring pursuant to Sections 4.01, 6.01(1) or 6.01(2) or (ii) any Default or
Event of Default of which the Trustee shall have received written notification or obtained actual
knowledge.



     (h) Deliveries of reports, information and documents to the Trustee under Section 4.03 are for
informational purposes only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).



Section 7.03 Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee (if this Indenture has been qualified under the TIA) or resign. Any Agent may
do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.



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Section 7.04 Trustee’s Disclaimer.




     The Trustee will not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.



Section 7.05 Notice of Defaults.




     If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee will mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in payment of principal
of, premium on, if any, interest or Special Interest, if any, on, any Note, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the Notes.



Section 7.06 Reports by Trustee to Holders of the Notes.




     (a) Within 60 days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee will mail to the Holders of the
Notes a brief report dated as of such reporting date that complies with TIA §313(a) (but if no
event described in TIA §313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also will comply with TIA §313(b)(2). The Trustee
will also transmit by mail all reports as required by TIA §313(c).



     (b) A copy of each report at the time of its mailing to the Holders of Notes will be mailed by
the Trustee to the Company and filed by the Trustee with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA §313(d). The Company will promptly notify the Trustee
when the Notes are listed on any stock exchange.



Section 7.07 Compensation and Indemnity.




     (a) The Company will pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder. The Trustee’s compensation will not be
limited by any law on compensation of a trustee of an express trust. The Company will reimburse
the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses will include the
reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.



     (b) The Company and the Guarantors will indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and expenses of enforcing
this Indenture against the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other
Person) or liability in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee will notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company
or any of the Guarantors of their obligations hereunder.




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The Company or such Guarantor will defend the claim and the Trustee will cooperate in the
defense. The Trustee may have separate counsel and the Company will pay the reasonable fees and
expenses of such counsel. Neither the Company nor any Guarantor need pay for any settlement made
without its consent, which consent will not be unreasonably withheld.




     (c) The obligations of the Company and the Guarantors under this Section 7.07 will survive the
satisfaction and discharge of this Indenture.



     (d) To secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, the
Trustee will have a Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal of, premium on, if any, interest or Special
Interest, if any, on, particular Notes. Such Lien will survive the satisfaction and discharge of
this Indenture.



     (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(8) or (9) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.



     (f) The Trustee will comply with the provisions of TIA §313(b)(2) to the extent applicable.



Section 7.08 Replacement of Trustee.




     (a) A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.08.



     (b) The Trustee may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in aggregate principal amount of
the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:




     (1) the Trustee fails to comply with Section 7.10 hereof;




     (2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;




     (3) a custodian or public officer takes charge of the Trustee or its property; or




     (4) the Trustee becomes incapable of acting.



     (c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for
any reason, the Company will promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Company.



     (d) If a successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in
aggregate principal amount of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.



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     (e) If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



     (f) A successor Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of its succession to
Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the
successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.



Section 7.09 Successor Trustee by Merger, etc.




     If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act will be the successor Trustee.



Section 7.10 Eligibility; Disqualification.




     There will at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.



     This Indenture will always have a Trustee who satisfies the requirements of TIA §310(a)(1),
(2) and (5). The Trustee is subject to TIA §310(b).



Section 7.11 Preferential Collection of Claims Against Company.




     The Trustee is subject to TIA §311(a), excluding any creditor relationship listed in TIA
§311(b). A Trustee who has resigned or been removed shall be subject to TIA §311(a) to the extent
indicated therein.



ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.




     The Company may at any time, at the option of its Board of Directors evidenced by a resolution
set forth in an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied
to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.



Section 8.02 Legal Defeasance and Discharge.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company and each of the Guarantors will, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with
respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set
forth below are satisfied



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(hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company
and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be
“outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under
such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging the same), except for the
following provisions which will survive until otherwise terminated or discharged hereunder:





     (1) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, premium on, if any, interest or Special Interest, if any, on, such Notes when
such payments are due from the trust referred to in Section 8.04 hereof;



     (2) the Company’s obligations with respect to such Notes under Article 2 and Section
4.02 hereof;




     (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s and the Guarantors’ obligations in connection therewith; and




     (4) this Article 8.




     Subject to compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.



Section 8.03 Covenant Defeasance.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company and each of the Guarantors will, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be released from each of their obligations under the covenants
contained in Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 10.04
hereof and clause (4) of Section 5.01 hereof with respect to the outstanding Notes on and after the
date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes will thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof)
in connection with such covenants, but will continue to be deemed “outstanding” for all other
purposes hereunder (it being understood that such Notes will not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and
will have no liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any
other document and such omission to comply will not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such
Notes and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3), (4), (5), (6),
(7) and (10) hereof will not constitute Events of Default.



Section 8.04 Conditions to Legal or Covenant Defeasance.




     In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02
or 8.03 hereof:



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     (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
investment bank, appraisal firm, or firm of independent public accountants, to pay the
principal of, premium on, if any, interest and Special Interest, if any, on, the outstanding
Notes on the stated date for payment thereof or on the applicable redemption date, as the
case may be, and the Company must specify whether the Notes are being defeased to such
stated date for payment or to a particular redemption date;



     (2) in the case of an election under Section 8.02 hereof, the Company must deliver to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that:




     (A) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling; or




     (B) since the date of this Indenture, there has been a change in the applicable
federal income tax law,


in either case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the outstanding Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred;




     (3) in the case of an election under Section 8.03 hereof, the Company must deliver to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;



     (4) no Default or Event of Default shall have occurred and is continuing on the date of
such deposit (other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit (and any similar concurrent deposit relating to other
Indebtedness), and the granting of Liens to secure such borrowings);



     (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture and the agreements governing any other Indebtedness being defeased,
discharged or replaced) to which the Company or any of the Guarantors is a party or by which
the Company or any of the Guarantors is bound;



     (6) the Company must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Notes over
the other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others; and



     (7) the Company must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.



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Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.




     Subject to Section 8.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the
outstanding Notes will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of principal, premium, if any,
interest and Special Interest, if any, but such money need not be segregated from other funds
except to the extent required by law.



     The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable Government Securities deposited pursuant to Section
8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes.



     Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in
excess of the amount thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.



Section 8.06 Repayment to Company.




     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium on, if any, interest or Special Interest, if
any, on, any Note and remaining unclaimed for two years after such principal, premium, if any,
interest or Special Interest, if any, has become due and payable shall be paid to the Company on
its request or (if then held by the Company) will be discharged from such trust; and the Holder of
such Note will thereafter be permitted to look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date specified therein, which
will not be less than 30 days from the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the Company.



Section 8.07 Reinstatement.




     If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government
Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s and the Guarantors’ obligations under this
Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit
had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case
may be; provided, however, that, if the Company makes any payment of principal of, premium on, if
any, interest or Special Interest, if any, on, any Note



74









 




following the reinstatement of its obligations, the Company will be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying
Agent.




ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01 Without Consent of Holders of Notes.




     Notwithstanding Section 9.02 of this Indenture, without the consent of any Holder of Notes,
the Company, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes or
the Note Guarantees:




     (1) to cure any ambiguity, omission, defect or inconsistency;




     (2) to provide for uncertificated Notes in addition to or in place of certificated
Notes;




     (3) to provide for the assumption of the Company’s or a Guarantor’s obligations to the
Holders of the Notes and Note Guarantees by a successor to the Company or such Guarantor
pursuant to Article 5 or Article 10 hereof;




     (4) to make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights hereunder of any
Holder;




     (5) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;




     (6) to conform the text of this Indenture, the Notes, the Note Guarantees to any
provision of the “Description of Notes” section of the Company’s Offering Circular dated
December 7, 2009, relating to the initial offering of the Notes, to the extent that such
provision in that “Description of Notes” was intended to be a verbatim recitation of a
provision of this Indenture, the Notes, the Note Guarantees, which intent may be evidenced
by an Officers’ Certificate to that effect; or




     (7) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee
with respect to the Notes.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company
and the Guarantors in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee will not be obligated to enter into
such amended or supplemental indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.



Section 9.02 With Consent of Holders of Notes.




     Except as provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Indenture (including, without limitation, Sections 3.08, 3.09, 4.10 and 4.15
hereof) and the Notes and the Note Guarantees with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes voting as a single class
(including, without limitation, consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes), and,



75









 




subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than
a Default or Event of Default in the payment of the principal of, premium on, if any, interest or
Special Interest, if any, on, the Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of this Indenture or the Notes or the
Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal
amount of the then outstanding Notes voting as a single class (including, without limitation,
consents obtained in connection with a tender offer or exchange offer for, or purchase of, the
Notes). Section 2.08 hereof shall determine which Notes are considered to be “outstanding” for
purposes of this Section 9.02.




     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee will join with the Company and the Guarantors in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may
in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.



     It is not necessary for the consent of the Holders of Notes under this Section 9.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it is sufficient if such
consent approves the substance thereof.



     After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company will mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, will not, however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by the Company with any provision of this Indenture, the
Notes or the Note Guarantees. However, without the consent of each Holder affected, an amendment,
supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):




     (1) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;




     (2) reduce the principal of or change the fixed maturity of any Note or alter or waive
any of the provisions with respect to the redemption of the Notes (except as provided above
with respect to Sections 3.08, 3.09, 4.10 and 4.15 hereof);




     (3) reduce the rate of or change the time for payment of interest, including default
interest, on any Note;




     (4) waive a Default or Event of Default in the payment of principal of, premium on, if
any, interest or Special Interest, if any, on, the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate principal
amount of the then outstanding Notes and a waiver of the payment default that resulted from
such acceleration);




     (5) make any Note payable in money other than that stated in the Notes;



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     (6) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Notes to receive payments of principal of, premium on,
if any, interest or Special Interest, if any, on, the Notes;




     (7) waive a redemption payment with respect to any Note (other than a payment required
by Sections 3.08, 3.09, 4.10 or 4.15 hereof);




     (8) release any Guarantor from any of its obligations under its Note Guarantee or this
Indenture, except in accordance with the terms of this Indenture; or




     (9) make any change in the preceding amendment and waiver provisions.



Section 9.03 Compliance with Trust Indenture Act.




     Every amendment or supplement to this Indenture or the Notes will be set forth in a amended or
supplemental indenture that complies with the TIA as then in effect.



Section 9.04 Revocation and Effect of Consents.




     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.



Section 9.05 Notation on or Exchange of Notes.




     The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.



     Failure to make the appropriate notation or issue a new Note will not affect the validity and
effect of such amendment, supplement or waiver.



Section 9.06 Trustee to Sign Amendments, etc.




     The Trustee will sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until
the Board of Directors of the Company approves it. In executing any amended or supplemental
indenture, the Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be
fully protected in relying upon, in addition to the documents required by Section 12.04 hereof, an
Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture.



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ARTICLE 10

NOTE GUARANTEES




Section 10.01. Guarantee.




     (a) Subject to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:




     (1) the principal of, premium on, if any, interest and Special Interest, if any, on,
the Notes will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium on, if any,
interest and Special Interest, if any, on, the Notes, if lawful, and all other obligations
of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid
in full or performed, all in accordance with the terms hereof and thereof; and




     (2) in case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.



     Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.



     (b) The Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged
except by complete performance of the obligations contained in the Notes and this Indenture.



     (c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force
and effect.



     (d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors will have the right to



78









 




seek contribution from any non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the Note Guarantee.




Section 10.02. Limitation on Guarantor Liability.




     Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum
amount that will, after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in
the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer
or conveyance.



Section 10.03. Execution and Delivery of Note Guarantee.




     To evidence its Note Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees
that a notation of such Note Guarantee substantially in the form attached as Exhibit E hereto will
be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee
and that this Indenture will be executed on behalf of such Guarantor by one of its Officers.



     Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 hereof will
remain in full force and effect notwithstanding any failure to endorse on each Note a notation of
such Note Guarantee.



     If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed,
the Note Guarantee will be valid nevertheless.



     The delivery of any Note by the Trustee, after the authentication thereof hereunder, will
constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the
Guarantors.



     In the event that the Company or any of its Restricted Subsidiaries creates or acquires any
Domestic Subsidiary after the date of this Indenture, if required by Section 4.16 hereof, the
Company will cause such Domestic Subsidiary to comply with the provisions of Section 4.16 hereof
and this Article 10, to the extent applicable.



Section 10.04. Guarantors May Consolidate, etc., on Certain Terms.




     Except as otherwise provided in Section 10.05 hereof, no Guarantor may sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person) another Person, other than the Company or
another Guarantor, unless:




     (1) immediately after giving effect to such transaction, no Default or Event of Default
exists; and




     (2) either:




79












 






          (a) subject to Section 10.05 hereof, the Person acquiring the property in any such sale
or disposition or the Person formed by or surviving any such consolidation or merger, if
other than the Guarantor, assumes all the obligations of that Guarantor under its Note
Guarantee, this Indenture and the Registration Rights Agreement on the terms set forth
herein or therein, pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee; or




          (b) the Net Proceeds of such sale or other disposition are applied, to the extent such
sale or disposition constitutes an Asset Sale, in accordance with the applicable provisions
of this Indenture, including without limitation, Section 4.10 hereof.



     In case of any such consolidation, merger, sale or conveyance and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same
effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to
be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the Trustee. All the
Note Guarantees so issued will in all respects have the same legal rank and benefit under this
Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Note Guarantees had been issued at the date of the execution
hereof.



     Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses 2(a) and (b)
above, nothing contained in this Indenture or in any of the Notes will prevent any consolidation or
merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.



Section 10.05. Releases.




     (a) In the event of any sale or other disposition of all or substantially all of the assets of
any Guarantor, by way of merger, consolidation or otherwise, to a Person that is not (either before
or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company,
then the corporation acquiring the property will be released and relieved of any obligations under
the Note Guarantee;



     (b) In the event of any sale or other disposition of Capital Stock of any Guarantor to a
Person that is not (either before or after giving effect to such transaction) the Company or a
Restricted Subsidiary of the Company and such Guarantor ceases to be a Restricted Subsidiary of the
Company as a result of the sale or other disposition, then such Guarantor will be released and
relieved of any obligations under its Note Guarantee;



 provided, in both cases, that the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of this Indenture, including without limitation Section
4.10 hereof. Upon delivery by the Company to the Trustee of an Officers’ Certificate and an
Opinion of Counsel to the effect that such sale or other disposition was made by the Company in
accordance with the provisions of this Indenture, including without limitation Section 4.10 hereof,
the Trustee will execute any documents reasonably required in order to evidence the release of any
Guarantor from its obligations under its Note Guarantee.



80









 





     (c) Upon designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted
Subsidiary in accordance with the terms of this Indenture, such Guarantor will be released and
relieved of any obligations under its Note Guarantee.



     (d) Upon Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof or
satisfaction and discharge of this Indenture in accordance with Article 11 hereof, each Guarantor
will be released and relieved of any obligations under its Note Guarantee.



     Any Guarantor not released from its obligations under its Note Guarantee as provided in this
Section 10.05 will remain liable for the full amount of principal of, premium on, if any, interest
and Special Interest, if any, on, the Notes and for the other obligations of any Guarantor under
this Indenture as provided in this Article 10.



ARTICLE 11

SATISFACTION AND DISCHARGE




Section 11.01 Satisfaction and Discharge.




     This Indenture will be discharged and will cease to be of further effect as to all Notes
issued hereunder, when:



          (1) either:





          (a) all Notes that have been authenticated, except lost, stolen or destroyed Notes that
have been replaced or paid and Notes for whose payment money has been deposited in trust and
thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or




          (b) all Notes that have not been delivered to the Trustee for cancellation have become
due and payable by reason of the mailing of a notice of redemption or otherwise or will
become due and payable within one year and the Company or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust solely for the
benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, without consideration of any
reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not
delivered to the Trustee for cancellation for principal, premium, if any, interest and
Special Interest, if any, to the date of maturity or redemption;




     (2) in respect of subclause (b) of clause (1) of this Section 11.01, no Default or
Event of Default has occurred and is continuing on the date of the deposit (other than a
Default or Event of Default resulting from the borrowing of funds to be applied to such
deposit and any similar deposit relating to other Indebtedness and, in each case, the
granting of Liens to secure such borrowings) and the deposit will not result in a breach or
violation of, or constitute a default under, any other material instrument to which the
Company or any Guarantor is a party or by which the Company or any Guarantor is bound (other
than with respect to the borrowing of funds to be applied concurrently to make the deposit
required to effect such satisfaction and discharge and any similar concurrent deposit
relating to other Indebtedness, and in each case the granting of Liens to secure such
borrowings);




     (3) the Company or any Guarantor has paid or caused to be paid all sums payable by it
under this Indenture; and



81









 






     (4) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or on the
redemption date, as the case may be.


In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.




     Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (b) of clause (1) of this Section 11.01, the provisions of
Sections 11.02 and 8.06 hereof will survive. In addition, nothing in this Section 11.01 will be
deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.



Section 11.02 Application of Trust Money.




     Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal, premium, if any, interest and Special Interest, if any,
for whose payment such money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.



     If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof;
provided that if the Company has made any payment of principal of, premium on, if any, interest or
Special Interest, if any, on, any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from
the money or Government Securities held by the Trustee or Paying Agent.



ARTICLE 12

MISCELLANEOUS




Section 12.01 Trust Indenture Act Controls.




     If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA §318(c), the imposed duties will control.



Section 12.02 Notices.




     Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly
given if in writing and delivered in Person or by first class mail (registered or certified, return
receipt requested), facsimile transmission or overnight air courier guaranteeing next day delivery,
to the others’ address:



82









 




If to the Company and/or any Guarantor:



JDA Software Group, Inc.

14400 North 87th Street

Scottsdale, AZ 85260

Facsimile No.: (408) 308-3001

Attention: General Counsel



With a copy to:

Cooley Godward Kronish LLP

101 California Street

5th Floor

San Francisco, CA 94111

Facsimile No.: (415) 693-2222

Attention: Joseph Scherer and Mischi a Marca



If to the Trustee:

U.S. Bank National Association

60 Livingston Avenue, EP-MN-WS3C

St. Paul, MN 55107

Facsimile No.: (651) 495-8097

Attention: JDA Software Administrator




     The Company, any Guarantor or the Trustee, by notice to the others, may designate additional
or different addresses for subsequent notices or communications.



     All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.



     Any notice or communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication will also be
so mailed to any Person described in TIA §313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with
respect to other Holders.



     If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



     If the Company mails a notice or communication to Holders, it will mail a copy to the Trustee
and each Agent at the same time.



Section 12.03 Communication by Holders of Notes with Other Holders of Notes.




     Holders may communicate pursuant to TIA §312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA §312(c).



83









 





Section 12.04 Certificate and Opinion as to Conditions Precedent.




     Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:




     (1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 12.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and




     (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.



Section 12.05 Statements Required in Certificate or Opinion.




     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA §314(a)(4)) must comply
with the provisions of TIA §314(e) and must include:




     (1) a statement that the Person making such certificate or opinion has read such
covenant or condition;




     (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and




     (4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.



Section 12.06 Rules by Trustee and Agents.




     The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.



Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.




     No director, officer, employee, incorporator or stockholder of the Company or any Guarantor,
as such, will have any liability for any obligations of the Company or the Guarantors under the
Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the consideration for issuance of
the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.



Section 12.08 Governing Law.




     THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE,
THE NOTES AND THE NOTE GUARANTEES WITHOUT



84









 







GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.



Section 12.09 No Adverse Interpretation of Other Agreements.




     This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.



Section 12.10 Successors.




     All agreements of the Company in this Indenture and the Notes will bind its successors. All
agreements of the Trustee in this Indenture will bind its successors. All agreements of each
Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.05
hereof.



Section 12.11 Severability.




     In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.



Section 12.12 Counterpart Originals.




     The parties may sign any number of copies of this Indenture. Each signed copy will be an
original, but all of them together represent the same agreement.



Section 12.13 Table of Contents, Headings, etc.




     The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and will in no way modify or restrict any of the terms or provisions hereof.



[Signatures on following page]




85









 





SIGNATURES




Dated as of December 10, 2009




	 	 	 	 	 
	 	JDA SOFTWARE GROUP, INC.

 	 
	 	By:  	/s/ Hamish Brewer
 	 
	 	 	Name:  	Hamish Brewer 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 
	 	JDA WORLDWIDE, INC.

 	 
	 	By:  	/s/ G. Michael Bridge
 	 
	 	 	Name:  	G. Michael Bridge 	 
	 	 	Title:  	Senior Vice President and General Counsel 	 
	 
	 	JDA SOFTWARE, INC.

 	 
	 	By:  	/s/ G. Michael Bridge
 	 
	 	 	Name:  	G. Michael Bridge 	 
	 	 	Title:  	Senior Vice President and General Counsel 	 
	 
	 	MANUGISTICS GROUP, INC.

 	 
	 	By:  	/s/ G. Michael Bridge
 	 
	 	 	Name:  	G. Michael Bridge 	 
	 	 	Title:  	Senior Vice President and General Counsel 	 



 









 






	 	 	 	 	 
	 	MANUGISTICS, INC.

 	 
	 	By:  	/s/ G. Michael Bridge
 	 
	 	 	Name:  	G. Michael Bridge 	 
	 	 	Title:  	Senior Vice President and General Counsel 	 
	 
	 	MANUGISTICS HOLDINGS DELAWARE II, INC.

 	 
	 	By:  	/s/ G. Michael Bridge
 	 
	 	 	Name:  	G. Michael Bridge 	 
	 	 	Title:  	Senior Vice President and General Counsel 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Richard Prokosch
 	 
	 	 	Name:  	Richard Prokosch 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



[Face of Note]

 





CUSIP/CINS                     




8.0% Senior Notes due 2014




			
	No.                     
	 	$                    






JDA SOFTWARE GROUP, INC.




promises to pay to                                          or registered assigns,



the principal sum of                                                                     
                       
 DOLLARS on December 15, 2014.



Interest Payment Dates: June 15 and December 15



Record Dates: June 1 and December 1



Dated:                     , 2009




	 	 	 	 	 
	 	JDA SOFTWARE GROUP, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


This is one of the Notes referred to

in the within-mentioned Indenture:



U.S. BANK NATIONAL ASSOCIATION,

as Trustee




	 	 	 	 	 
	 	 
	By:  	 	 
	 	Authorized Signatory 	 
	 	 	 



 






A-1











 





[Back of Note]

8.0% Senior Notes due 2014



THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933
(THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)
(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN
OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN
THE MEANING OF RULE 501 OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.




     Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.



A-2









 






     (1) Interest. JDA Software Group, Inc., a Delaware corporation (the
“Company”), promises to pay or cause to be paid interest on the principal amount of this
Note at 8.0% per annum from December 10, 2009 until maturity and shall pay the Special
Interest, if any, payable pursuant to the Registration Rights Agreement referred to below.
The Company will pay interest and Special Interest, if any, semi-annually in arrears on June
15 and December 15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided that, if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided further that
the first Interest Payment Date shall be June 15, 2010. The Company will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest, if any (without regard to any applicable
grace period), at the same rate to the extent lawful.




     Interest will be computed on the basis of a 360-day year comprised of twelve 30-day
months.




     (2) Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) and Special Interest, if any, to the Persons who are registered
Holders of Notes at the close of business on the June 1 or December 1 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest. The Notes will be payable as to principal, premium, if any,
interest and Special Interest, if any, at the office or agency of the Paying Agent and
Registrar within the City and State of New York, or, at the option of the Company, payment
of interest and Special Interest, if any, may be made by check mailed to the Holders at
their addresses set forth in the register of Holders; provided that payment by wire transfer
of immediately available funds will be required with respect to principal of, premium on, if
any, interest and Special Interest, if any, on, all Global Notes and all other Notes the
Holders of which will have provided wire transfer instructions to the Company or the Paying
Agent. Such payment will be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.




     (3) Paying Agent and Registrar. Initially, U.S. Bank National
Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change the Paying Agent or Registrar without prior notice to the Holders of the
Notes. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.




     (4) Indenture. The Company issued the Notes under an Indenture dated
as of December, 10, 2009 (the “Indenture”) among the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the TIA. The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Notes are unsecured
obligations of the Company. The Indenture does not limit the aggregate principal amount of
Notes that may be issued thereunder.




     (5) Optional Redemption.




          (a) At any time prior to December 15, 2012, the Company may on any one or more
occasions redeem up to 35% of the aggregate principal amount of Notes issued under the



A-3









 






Indenture, upon not less than 30 nor more than 60 days’ notice, at a redemption price
equal to 108.0% of the principal amount of the Notes redeemed, plus accrued and unpaid
interest and Special Interest, if any, to the date of redemption (subject to the rights of
Holders of Notes on the relevant record date to receive interest on the relevant Interest
Payment Date) with the net cash proceeds of an Equity Offering by the Company; provided
that:




     (A) at least 65% of the aggregate principal amount of Notes originally issued
under the Indenture (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after the occurrence of such redemption; and




     (B) the redemption occurs within 90 days of the date of the closing of such
Equity Offering.




          (b) At any time prior to December 15, 2012, the Company may on any one or more
occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’
notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed,
plus the Applicable Premium as of, and accrued and unpaid interest and Special Interest, if
any, to the applicable date of redemption, subject to the rights of Holders on the relevant
record date to receive interest due on the relevant Interest Payment Date.




          (c) Except pursuant to the preceding paragraphs, the Notes will not be redeemable at
the Company’s option prior to December 15, 2012.




          (d) On or after December 15, 2012, the Company may on any one or more occasions redeem
all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice, at the
redemption prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest and Special Interest, if any, on the Notes redeemed, to the
applicable redemption date, if redeemed during the twelve-month period beginning on December
15 of the years indicated below, subject to the rights of Holders on the relevant record
date to receive interest on the relevant Interest Payment Date:



	 	 	 	 	 
	Year	 	Percentage	 
	2012
	 	 	104.000	%
	2013 and thereafter
	 	 	100.000	%







Unless the Company defaults in the payment of the redemption price, interest will cease to
accrue on the Notes or portions thereof called for redemption on the applicable redemption
date.




     (6) Mandatory Redemption. In addition to any payments required by
Sections 4.10 and 4.15 of the Indenture, if the completion of the Merger does not occur on
or prior to May 4, 2010 (the “Deadline”), the Company shall redeem all and not less than all
of the Notes then outstanding, upon not less than 3 business days’ notice, at a redemption
price equal to 101% of the gross proceeds of the Notes, plus accrued interest and unpaid to,
but not including, the redemption date. If the completion of the Merger occurs prior to the
Deadline, upon the Escrow Agent’s receipt of an officer’s certificate in the form set forth
in the Escrow Agreement, all amounts held in the escrow account pursuant to the Escrow
Agreement will be released to the Company on the date of the completion of the Merger. The
Company has the option to redeem the Notes prior to the Deadline on the same terms as set
forth in Section 3.08 of the Indenture.



A-4









 






     (7) Repurchase at the Option of Holder.




          (a) Upon the occurrence of a Change of Control, the Company will make an offer (a
“Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or
an integral multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price
in cash equal to 101% of the aggregate principal amount plus accrued and unpaid interest and
Special Interest, if any, thereon to the date of purchase subject to the rights of Holders
on the relevant record date to receive interest due on the relevant interest payment date
(the “Change of Control Payment”). Within 30 days following any Change of Control, the
Company will mail a notice to each Holder setting forth the procedures governing the Change
of Control Offer as required by the Indenture.




          (b) If the Company or a Restricted Subsidiary of the Company consummates any Asset
Sales, within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds
$25.0 million, the Company will make an Asset Sale Offer to all Holders of Notes and, at the
Company’s option, all holders of other Indebtedness that is pari passu with the Notes
containing provisions similar to those set forth in the Indenture with respect to offers to
purchase, prepay or redeem with the proceeds of sales of assets in accordance with the
Indenture to purchase, prepay or redeem the maximum principal amount of Notes and such other
pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all
fees and expenses, including premiums, incurred in connection therewith) that may be
purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset
Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest
and Special Interest, if any, to the date of purchase, prepayment or redemption, subject to
the rights of Holders of Notes on the relevant record date to receive interest due on the
relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any
purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of
Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed
in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee
will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata
basis, based on the amounts tendered or required to be prepaid or redeemed (with such
adjustments as may be deemed appropriate by the Company so that only Notes in denominations
of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to
the Notes.




     (8) Notice of Redemption. At least 30 days but not more than 60 days
before a redemption date, the Company will mail or cause to be mailed, by first class mail,
a notice of redemption to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with a defeasance of the Notes or a
satisfaction and discharge of the Indenture pursuant to Articles 8 or 11 thereof. Notes and
portions of Notes selected will be in amounts of $2,000 or whole multiples of $1,000 in
excess thereof; except that if all of the Notes of a Holder are to be redeemed or purchased,
the entire outstanding amount of Notes held by such Holder shall be redeemed or purchased




     (9) Denominations, Transfer, Exchange. The Notes are in registered
form in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The
transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.
The Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and



A-5









 






transfer documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Company need not exchange or register
the transfer of any Note or portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange
or register the transfer of any Notes for a period of 15 days before a selection of Notes to
be redeemed or during the period between a record date and the next succeeding Interest
Payment Date.




     (10) Persons Deemed Owners. The registered Holder of a Note may be
treated as the owner of it for all purposes. Only registered Holders have rights under the
Indenture.




     (11) Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture, the Notes or the Note Guarantees may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal amount of the
then outstanding Notes voting as a single class, and any existing Default or Event of
Default or compliance with any provision of the Indenture or the Notes or the Note
Guarantees may be waived with the consent of the Holders of a majority in aggregate
principal amount of the then outstanding Notes voting as a single class. Without the
consent of any Holder of Notes, the Indenture, the Notes or the Note Guarantees may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Company’s or a Guarantor’s obligations to Holders of the Notes and Note
Guarantees by a successor to the Company or such Guarantor pursuant to the Indenture, to
make any change that would provide any additional rights or benefits to the Holders of the
Notes or that does not adversely affect the legal rights under the Indenture of any Holder,
to comply with the requirements of the SEC in order to effect or maintain the qualification
of the Indenture under the TIA, to conform the text of the Indenture, the Notes, the Note
Guarantees to any provision of the “Description of Notes” section of the Company’s Offering
Circular dated December 7, 2009, relating to the initial offering of the Notes, to the
extent that such provision in that “Description of Notes” was intended to be a verbatim
recitation of a provision of the Indenture, the Notes, the Note Guarantees, which intent may
be evidenced by an Officers’ Certificate to that effect, or to allow any Guarantor to
execute a supplemental indenture to the Indenture and/or a Note Guarantee with respect to
the Notes.




     (12) Defaults and Remedies. Events of Default include: (i) default
for 30 days in the payment when due of interest and Special Interest, if any, on, the Notes;
(ii) default in the payment when due (at maturity, upon redemption, repurchase or otherwise)
of the principal of, or premium on, if any, the Notes, (iii) failure by the Company or any
of its Restricted Subsidiaries to comply with the provisions of Section 5.01 of the
Indenture; (iv) failure by the Company or any of its Restricted Subsidiaries for 30 days
after notice to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding voting as a single class to comply with the
provisions of Section 4.10 and 4.15 of the Indenture (other than a failure to repurchase
notes tendered pursuant to those Sections); (v) failure by the Company or any of its
Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then outstanding voting
as a single class to comply with any of the other agreements in the Indenture (vi) default
under any mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or is
created after the date of this Indenture, if that default: (a) is caused by a failure to pay
principal of such Indebtedness (giving effect to any applicable grace periods and extensions
thereof) (a “Payment Default”); or (b) results in the acceleration of such Indebtedness
prior to its express final maturity,



A-6









 






and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $25.0 million or more; (vii)
failure by the Company or any of its Restricted Subsidiaries to pay final judgments entered
by a court or courts of competent jurisdiction aggregating in excess of $25.0 million, which
judgments are not paid, discharged stayed, satisfied, annulled or rescinded, for a period of
60 days; (viii) the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company at the same or similar
time that, taken together, would constitute a Significant Subsidiary pursuant to or within
the meaning of Bankruptcy Law: (a) commences a voluntary case, (b) consents to the entry of
an order for relief against it in an involuntary case, (c) consents to the appointment of a
custodian of it or for all or substantially all of its property, (d) makes a general
assignment for the benefit of its creditors, or (e) generally is not paying its debts as
they become due; (ix) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (a) is for relief against the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company at the same or similar time that, taken together, would constitute a Significant
Subsidiary in an involuntary case; (b) appoints a custodian of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company at the same or similar time that, taken together, would
constitute a Significant Subsidiary or for all or substantially all of the property of the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group
of Restricted Subsidiaries of the Company at the same or similar time that, taken together,
would constitute a Significant Subsidiary; or (c) orders the liquidation of the Company or
any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company at the same or similar time that, taken together,
would constitute a Significant Subsidiary; and (x) except as permitted by the Indenture, any
Note Guarantee of a Significant Subsidiary is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect, or any
Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its
obligations under its Note Guarantee. In the case of an Event of Default arising from
certain events of bankruptcy or insolvency with respect to the Company, any Restricted
Subsidiary of the Company that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company at the same or similar time that, taken together, would
constitute a Significant Subsidiary, all outstanding Notes will become due and payable
immediately without further action or notice. If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes may declare all the Notes to be due and payable immediately. Holders
may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power conferred on
it. The Trustee may withhold from Holders of the Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment of principal,
premium, if any, interest or Special Interest, if any,) if it determines that withholding
notice is in their interest. The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may, on behalf of all the Holders, rescind
an acceleration or waive an existing Default or Event of Default and its respective
consequences under the Indenture except a continuing Default or Event of Default in the
payment of principal of, premium on, if any, interest or Special Interest, if any, on, the
Notes (including in connection with an offer to purchase). The Company is required to
deliver to the Trustee annually a statement regarding compliance with the Indenture, and the
Company is required, upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.



A-7









 






     (13) Trustee Dealings with Company. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not the Trustee.




     (14) No Recourse Against Others. No director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, will have any
liability for any obligations of the Company or the Guarantors under the Notes, the
Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the consideration for
issuance of the Notes. The waiver may not be effective to waive liabilities under the
federal securities laws




     (15) Authentication. This Note will not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.




     (16) Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).




     (17) Additional Rights of Holders of Restricted Global Notes and
Restricted Definitive Notes. In addition to the rights provided to Holders of Notes
under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will
have all the rights set forth in the Registration Rights Agreement dated as of December 10,
2009, among the Company, the Guarantors and the other parties named on the signature pages
thereof (the “Registration Rights Agreement”).




     (18) CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of redemption, and
reliance may be placed only on the other identification numbers placed thereon.




     (19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.



     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to:



JDA Software Group, Inc.

14400 North 87th Street

Scottsdale, AZ 85260

Attention: General Counsel




A-8









 





Assignment Form




     To assign this Note, fill in the form below:



	 	 	 
	(I) or (we) assign and transfer this Note to:
	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)






 





(Insert assignee’s soc. sec. or tax I.D. no.)




 





 





 





 





(Print or type assignee’s name, address and zip code)






	 	 	 
	and irrevocably appoint
	 	 
	 
	 
	to transfer this Note on the books of the Company. The agent may substitute another to act for
him.







Date:                                         




	 	 	 	 	 
	 
	 	Your Signature: 	 	 
	 
	 	 	 	 
	 	 	 	               (Sign exactly as your name appears on the face of this Note)






Signature Guarantee*:                                                              







 






	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-9









 










Option of Holder to Elect Purchase




     If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.15 of the Indenture, check the appropriate box below:



o Section 4.10                o Section 4.15




     If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:



$                                        




Date:                                         






	 	 	 	 	 
	 
	 	Your Signature: 	 	 
	 
	 	 	 	 
	 	 	 	                    (Sign exactly as your name appears on the face of this Note)






	 	 	 	 	 
	 
	 	Tax Identification No.: 	 	 
	 
	 	 	 	 





Signature Guarantee*:                                                              




 




	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-10









 











Schedule of Exchanges of Interests in the Global Note *




     The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Principal Amount	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	of this Global Note	 	 
	 	 	 	 	Amount of decrease in	 	Amount of increase in	 	following such	 	Signature of authorized
	 	 	 	 	Principal Amount of	 	Principal Amount of	 	decrease	 	officer of Trustee or
	Date of Exchange	 	this Global Note	 	this Global Note	 	(or increase)	 	Custodian







 




			
	*	 	This schedule should be included only if the Note is issued in global form.






A-11











 





Assignment Form




          To assign this Note, fill in the form below:




	 	 	 
	(I) or (we) assign and transfer this Note to:
	 	 
	 
	 
	 
	 	(Insert assignee’s legal name)





 




(Insert assignee’s soc. sec. or tax I.D. no.)




 





 





 





 




(Print or type assignee’s name, address and zip code)




	 	 	 
	and irrevocably appoint
	 	 
	 
	 
	to transfer this Note on the books of the Company. The agent may substitute another to act for him.






Date: _______________




	 	 	 	 	 
	 
	 	Your Signature:	 	 
	 
	 	 	 	 
	 	 	 	(Sign exactly as your name appears on the face of this Note)






Signature Guarantee*: ______________________________








 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-12 









 










Option of Holder to Elect Purchase




     If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.15 of the Indenture, check the appropriate box below:



o Section 4.10                      o Section 4.15




     If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:



$______________






Date: _______________





	 	 	 	 	 
	 
	 	Your Signature:	 	 
	 
	 	 	 	 
	 	 	 	(Sign exactly as your name appears on the face of this Note)






	 	 	 	 	 
	 
	 	Tax Identification No.:	 	 
	 
	 	 	 	 





Signature Guarantee*: ______________________________








 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-13 









 










Schedule of Exchanges of Interests in the Regulation S Temporary Global Note




          The following exchanges of a part of this Regulation S Temporary Global Note for an interest
in another Global Note, or exchanges of a part of another other Restricted Global Note for an
interest in this Regulation S Temporary Global Note, have been made:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	Principal Amount	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	of this Global Note	 	 	 	 
	 
	 	Amount of decrease in	 	Amount of increase in	 	following such	 	Signature of authorized
	 
	 	Principal Amount of	 	Principal Amount of	 	decrease	 	officer of Trustee or
	Date of Exchange
	 	this Global Note	 	this Global Note	 	(or increase)	 	Custodian
	 
	 	 	 	 	 	 	 	 






A-14 











 





EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




JDA Software Group, Inc.

14400 North 87th Street

Scottsdale, AZ 85260

Attention: General Counsel




U.S. Bank National Association

60 Livingston Avenue, EP-MN-WS3C

St. Paul, MN 55107

Attention: JDA Software Administrator




     Re: JDA Software Group, Inc. $275.0 million in aggregate principal amount 8.0%
Senior Notes due 2014



     Reference is hereby made to the Indenture, dated as of December 10, 2009 (the “Indenture”),
among JDA Software Group, Inc., as issuer (the “Company”), the Guarantors party thereto and U.S.
Bank National Association, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.



                                             , (the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of $                     in such
Note[s] or interests (the “Transfer”), to                                                              (the “Transferee”), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:



[CHECK ALL THAT APPLY]




     1. o Check if Transferee will take delivery of a beneficial interest in the 144A
Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended
(the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.



     2. o Check if Transferee will take delivery of a beneficial interest in the
Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a Person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation



B-1









 




S under the Securities Act and, (iii) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed
on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.




     3. o Check and complete if Transferee will take delivery of a beneficial interest
in the IAI Global Note or a Restricted Definitive Note pursuant to any provision of the Securities
Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with
the transfer restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any
applicable blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):




     (a) o such Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;



or





     (b) o such Transfer is being effected to the Company or a subsidiary thereof;



or





     (c) o such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act;



or





     (d) o such Transfer is being effected to an Institutional Accredited Investor
pursuant to an exemption from the registration requirements of the Securities Act other
than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further
certifies that it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the IAI Global Note and/or the Restricted
Definitive Notes and in the Indenture and the Securities Act.



     4. o Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note (check one).



     (a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of



B-2









 




the proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.




     (b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject
to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.



     (c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being
effected pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	        [Insert Name of Transferor] 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         




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ANNEX A TO CERTIFICATE OF TRANSFER





	 	1.	 	The Transferor owns and proposes to transfer the following:





[CHECK ONE OF (a) OR (b)]





	 	(a)	 	o a beneficial interest in the:






	 	(i)	 	o 144A Global Note (CUSIP                     ), or
	 
	 	(ii)	 	o Regulation S Global Note (CUSIP                     ), or
	 
	 	(iii)	 	o IAI Global Note (CUSIP                     ); or






	 	(b)	 	o a Restricted Definitive Note.






	 	2.	 	After the Transfer the Transferee will hold:





[CHECK ONE]





	 	(a)	 	o a beneficial interest in the:






	 	(i)	 	o 144A Global Note (CUSIP                     ), or
	 
	 	(ii)	 	o Regulation S Global Note (CUSIP                     ), or
	 
	 	(iii)	 	o IAI Global Note (CUSIP                     ); or
	 
	 	(iv)	 	o Unrestricted Global Note (CUSIP                     ); or






	 	(b)	 	o a Restricted Definitive Note; or
	 
	 	(c)	 	o an Unrestricted Definitive Note,
	 
	 	in accordance with the terms of the Indenture.




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EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




JDA Software Group, Inc.

14400 North 87th Street

Scottsdale, AZ 85260

Attention: General Counsel




U.S. Bank National Association

60 Livingston Avenue, EP-MN-WS3C

St. Paul, MN 55107

Attention: JDA Software Administrator




     Re: JDA Software Group, Inc. $275.0 million in aggregate principal amount 8.0%
Senior Notes due 2014



(CUSIP [           ])




     Reference is hereby made to the Indenture, dated as of December 10, 2009 (the “Indenture”),
among JDA Software Group, Inc., as issuer (the “Company”), the Guarantors party thereto and U.S.
Bank National Association, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.



                                             , (the “Owner”) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $                     in such Note[s]
or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:



     1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note



     (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.



     (b) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest
in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.



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     (c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired
in compliance with any applicable blue sky securities laws of any state of the United States.



     (d) o Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive
Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.



     2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes



     (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in
a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.



     (b) o Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the [CHECK ONE]o 144A Global Note,o Regulation S Global
Note, o IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 
	 	  	
 	 
	 	 	[Insert Name of Transferor] 	 
	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         





C-2











 





EXHIBIT D




FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




JDA Software Group, Inc.

14400 North 87th Street

Scottsdale, AZ 85260

Attention: General Counsel




U.S. Bank National Association

60 Livingston Avenue, EP-MN-WS3C

St. Paul, MN 55107

Attention: JDA Software Administrator




Re: JDA Software Group, Inc. $275.0 million in aggregate principal amount 8.0%
Senior Notes due 2014



     Reference is hereby made to the Indenture, dated as of December 10, 2009 (the “Indenture”),
among JDA Software Group, Inc., as issuer (the “Company”), the Guarantors party thereto and U.S.
Bank National Association, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.



     In connection with our proposed purchase of $                     aggregate principal amount of:



     (a) o a beneficial interest in a Global Note, or



     (b) o a Definitive Note,



     we confirm that:



     1. We understand that any subsequent transfer of the Notes or any interest therein is subject
to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the “Securities Act”).



     2. We understand that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, we will do so only (A) (1) to a person who the seller reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A under the Securities Act purchasing for its own
account or for the account of a qualified institutional buyer in a transaction meeting the
requirements of Rule 144A, (2) in an offshore transaction complying with Rule 903 or Rule 904 of
Regulation S under the Securities Act, (3) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if available), (4) to an institutional investor
that is an accredited investor within the meaning of Rule 501 of Regulation D under the Securities
Act or (5) pursuant to an effective registration statement under the Securities Act and (B) in
accordance with all applicable securities laws of the States of the United States and other
jurisdictions.



     3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the proposed sale
complies



D-1









 




with the foregoing restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.




     4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the economic risk of
our or its investment.



     5. We are acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.



     You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.



	 	 	 	 	 
	 	 	 
	 	  	
 	 
	 	 	     [Insert Name of Accredited Investor] 	 
	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated: _______________________





D-2









 








EXHIBIT E




[FORM OF NOTATION OF GUARANTEE]





     For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture dated as of December 10, 2009 (the
“Indenture”) among JDA Software Group, Inc., (the “Company”), the Guarantors party thereto and U.S.
Bank National Association, as trustee (the “Trustee”), (a) the due and punctual payment of the
principal of, premium on, if any, interest and Special Interest, if any, on, the Notes, whether at
maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on
overdue principal of, premium on, if any, interest and Special Interest, if any, on, the Notes, if
any, if lawful, and the due and punctual performance of all other obligations of the Company to the
Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.



     Capitalized terms used but not defined herein have the meanings given to them in the
Indenture.








	 	 	 	 	 
	 	[Name of Guarantor(s)] 	 
	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




E-1









 








EXHIBIT F




[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]





     Supplemental Indenture (this “Supplemental Indenture”), dated as of                     ,
among                      (the “Guaranteeing Subsidiary”), a subsidiary of JDA Software Group, Inc.
(or its permitted successor), a Delaware corporation (the “Company”), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and U.S. Bank National Association, as
trustee under the Indenture referred to below (the “Trustee”).



W I T N E S S E T H




     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of December 10, 2009 providing for the issuance of 8.0% Senior Notes due
2014 (the “Notes”);



     WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and



     WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.



     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:



     1. Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.



     2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee
and in the Indenture including but not limited to Article 10 thereof.



     4. No Recourse Against Others. No director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, will have any liability for any obligations
of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any
claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of
Notes by accepting a Note waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Notes. The waiver may not be effective to waive
liabilities under the federal securities laws.



     5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.



     6. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



F-1









 




EXHIBIT F





     7. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.



     8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.



F-2









 




EXHIBIT F

     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.



     Dated: _____________,



	 	 	 	 	 
	 	[Guaranteeing Subsidiary]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JDA SOFTWARE GROUP, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Existing Guarantors]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




F-3